Hyland Therapeutics v. Superior Court

• Citation: 175 Cal.App.3d 509,220 Cal.Rptr. 590
• Court: California Court of Appeals
• Decision Date: 10 December 1985
• Parties: , 54 USLW 2339, Prod.Liab.Rep. (CCH) P 10,877 HYLAND THERAPEUTICS, A DIVISION OF TRAVENOL LABORATORIES, INC., Petitioner, v. SUPERIOR COURT of the State of California, In and For the County of Santa Clara, Respondent. Michele GALLAGHER, etc., et al., Real Parties in Interest. MILES LABORATORIES, INC., Petitioner, v. SUPERIOR COURT of the State of California, In and For the County of Santa Clara, Respondent. Michele GALLAGHER, etc., et al., Real Parties in Interest. H001204, H000728.

Page 590

220 Cal.Rptr. 590

175 Cal.App.3d 509, 54 USLW 2339, Prod.Liab.Rep. (CCH) P 10,877

HYLAND THERAPEUTICS, A DIVISION OF TRAVENOL LABORATORIES, INC., Petitioner, v. SUPERIOR COURT of the State of California, In and For the County of Santa Clara, Respondent.

Michele GALLAGHER, etc., et al., Real Parties in Interest.

MILES LABORATORIES, INC., Petitioner, v. SUPERIOR COURT of the State of California, In and For the County of Santa Clara, Respondent.

Michele GALLAGHER, etc., et al., Real Parties in Interest.

H001204, H000728.

Court of Appeal, Sixth District, California.

Dec. 10, 1985.

Review Denied March 12, 1986.

Sedgwick, Detert, Moran & Arnold, Kevin J. Dunne, Bruce A. Edwards, O'Connor, Cohn, Dillon & Barr, Duncan Barr, Lisa T. Ungerer, San Francisco, for petitioners.

Morgan, Morgan, Towery, Morgan & Spector, Linda Deacon, W. Robert Morgan, San Jose, for real parties in interest.

THE COURT: ^*

A hemophiliac contracted acquired immune deficiency syndrome after being treated with clotting products manufactured from human blood by Miles Laboratories, Inc. (of which Cutter Laboratories is a division) and Hyland Therapeutics (a division of Travenol Laboratories, Inc.). He subsequently died. His heirs brought a wrongful death action against Miles and Hyland on negligence and strict product liability theories; his widow has joined in her own behalf, alleging that before he died the decedent communicated AIDS viri or antibodies to her. Both Miles and Hyland demurred generally. Both demurrers were overruled, and both Miles and Hyland seek review by extraordinary writ. In this court neither petitioner addresses the propriety of plaintiffs' negligence theory. The narrow questions presented are (1) whether the language of Health and Safety Code section 1606 bars plaintiffs' strict liability theory as pleaded against Miles and Hyland, and, if so, (2) whether section 1606 as so applied is constitutional. We conclude that both questions must be answered in the affirmative.

So far as relevant to the plaintiffs' strict liability theory, the first amended complaint alleges the following facts:

Plaintiffs are the widow and minor children, and heirs at law, of the decedent. Miles and Hyland engage in "the manufacture of blood products." The decedent "had hemophilia which caused him to take Factor VIII blood products for the correction of said condition. Factor VIII is the plasma clotting factor in human blood. Blood products manufactured by defendants, described generally as concentrates of human antihemophilic factor (Factor VIII), were used by decedent as a temporary means of replacing the missing clotting factor in order to correct or prevent bleeding." Within a relevant period the decedent had used Factor VIII blood products manufactured by Miles and Hyland, under medical supervision. "Said Factor VIII blood products were contaminated with a virus known to cause AIDS. As a proximate result of having taken intravenous injections of said contaminated Factor VIII blood products, the plaintiff [sic] contracted AIDS and ultimately died from the effects of that disease...." Miles and Hyland "manufactured, packaged and sold antihemophilic Factor VIII concentrates, which concentrates were a fraction of pooled plasma obtained from many paid donors. Said Factor VIII blood products were contaminated with the AIDS virus.... Plaintiff [sic] used such blood products in the manner intended, un[a]ware of the risk that the AIDS virus could be transmitted by use of blood products contaminated with said virus...." The widow was exposed to the AIDS virus through intimate relationship with the decedent; "[t]est results have indicated the presence of the AIDS virus and/or AIDS antibody in her blood." The events alleged proximately caused surviving damages to the decedent and damages to his widow and heirs.

The first amended complaint further alleges that Health and Safety Code Section 1606 "was enacted at a time when hepatitis was an undetectable viral agent. However, under the present state of art, hepatitis is detectable through tests of donor blood and all manufacturers and/or suppliers of blood and blood products are required by federal law to screen all blood for the hepatitis virus. The AIDS virus is likewise detectable through testing."

Miles demurred generally to the strict-liability count and to the count alleging communication of AIDS to the widow; Hyland, served considerably later, demurred generally to all counts. The demurrers were overruled. Miles sought reconsideration which was denied. These petitions followed. We find preliminarily that writ review is appropriate. (Cf. Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379.)

Section 1606 was initially enacted in 1955 as Health and Safety Code section 1623. (Stats.1955, ch. 1078, § 1, p. 2053.) It was renumbered in 1963. (Stats.1963, ch. 1055, § 2, p. 2487.) Its language reads now as it did when enacted in 1955: "The procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body shall be construed to be, and is declared to be, for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation participating therein, and shall not be construed to be, and is declared not to be, a sale of such whole blood, plasma, blood products, or blood derivatives, for any purpose or purposes whatsoever."

The parties agree that, in California, strict product liability theories apply only to sales or other commercial transfers of goods and not to services. (Pena v. Sita World Travel, Inc. (1978) 88 Cal.App.3d 642, 644, 152 Cal.Rptr. 17; Barton v. Owen (1977) 71 Cal.App.3d 484, 498, 139 Cal.Rptr. 494; Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1027, 98 Cal.Rptr. 187; cf. Shepard v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606, 610, 109 Cal.Rptr. 132; cf. also 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 832, pp. 3127-3128; Note (1974) 22 U.C.L.A. L.Rev. 401, 402.)

In Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 137 Cal.Rptr. 417, heirs of a decedent who died of hepatitis after being injected with a plasma product, "Konyne," developed by Cutter Laboratories had sued Cutter. On appeal from judgment on a defense verdict, the Court of Appeal considered, in connection with instruction issues, "whether the doctrine of strict products liability is applicable...." (68 Cal.App.3d at p. 750, 137 Cal.Rptr. 417.) The court concluded that the doctrine was not applicable; it stated one of its two alternative rationales for this conclusion in terms of section 1606: "It is quite apparent that in the instant case we are not dealing with a hospital or a blood bank, but with a private manufacturer of pharmaceuticals that is engaged in the business of distributing Konyne, a blood product, and puts that 'product on the market in order to profit therefrom.' Health and Safety Code section 1606 to date has been held applicable to hospitals and blood banks, but the question of its applicability to commercial vendors of blood products has not been answered. We are persuaded that the clear language of section 1606 requires us to construe the respondent's distribution of Konyne as the rendition of a service and not to be 'a sale of such whole blood, plasma, blood products, or blood derivatives, for any purpose or purposes whatsoever.' " (68 Cal.App.3d at p. 752, 137 Cal.Rptr. 417.)

In this action as in Fogo the clear language of section 1606 would bar plaintiffs' strict liability theory against the blood-product manufacturers. Plaintiffs do not deny that on its face section 1606 is applicable. Instead they argue that section 1606 should not apply. They contend:

(1) That as initially enacted in 1955 the language of section 1606 was intended not to give immunity from civil liability but rather to provide a sales and use tax exemption;

(2) That as distinct from hospitals and blood banks, commercial blood-product manufacturers such as Miles and Hyland are not providers of services but simply commercial suppliers of products for profit, directly subject to the stream-of-commerce rationale of strict product liability (cf. Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262-263, 37 Cal.Rptr. 896, 391 P.2d 168); and

(3) That there are sound policy reasons for subjecting blood-product manufacturers to strict product liability.

Each of these contentions is plausible. Collectively they might be persuasive, but for the well-established rule that "if statutory language is 'clear and unambiguous there is no need for construction, and courts should not indulge in it.' [Citation]. Unless [the party seeking an alternative construction] can demonstrate that the natural and customary import of the statute's language is either 'repugnant to the general purview of the act,' or for some other...