Kennedy v. Baxter Healthcare Corp.

• Decision Date: 28 February 1996
• Docket Number: No. C018845,C018845
• Citation: 50 Cal.Rptr.2d 736,43 Cal.App.4th 799
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 1816, 96 Daily Journal D.A.R. 3085 Kathleen KENNEDY et al., Plaintiffs and Appellants, v. BAXTER HEALTHCARE CORPORATION et al., Defendants and Respondents.

Page 736

50 Cal.Rptr.2d 736

43 Cal.App.4th 799, 96 Cal. Daily Op. Serv. 1816,

96 Daily Journal D.A.R. 3085

Kathleen KENNEDY et al., Plaintiffs and Appellants, v. BAXTER HEALTHCARE CORPORATION et al., Defendants and Respondents.

No. C018845.

Court of Appeal, Third District, California.

Feb. 28, 1996.

Friedman & Collard, Morton L. Friedman, C. Brooks Cutter and Eric J. Ratinoff, Sacramento, for Plaintiffs and Appellants.

Porter, Scott, Weiberg & Delehant, Craig A. Caldwell, Sacramento, Seyfarth, Shaw, Fairweather & Geraldson, Robert M. Mitchell, Jay W. Connolly, San Francisco, Kurt A. Kappes, Sacramento, Sedgwick, Detert, Moran & Arnold, Stephanie A. Sheridan, San Francisco, Preuss, Walker & Shanagher, Charles F. Preuss, Thomas W. Pulliam, Jr., Alan J. Lazarus, Kenneth P. Conour, San Francisco, Wise, Wiezorek, Timmons & Wise, Albert F. Padley III, Duane H. Timmons, Los Angeles, Bolling, Walter & Gawthrop, T.D. Bolling, Jr., Marjorie E. Manning, Sacramento, Klauschie & Shannon, Thomas J. Kristof, Jack A. Klauschie, Jr., Rancho Cordova, Thomas D. Marple, San Francisco, and Cort B. Mahl, Sacramento, for Defendants and Respondents.

SPARKS, Acting Presiding Justice.

Plaintiffs Kathleen Kennedy and Sharon Tryon are health care workers who brought suit against a variety of manufacturers, distributors, and sellers of latex gloves for injuries sustained due to an alleged allergic reaction to these gloves. ¹ In addition to individual causes of action, plaintiffs' second amended complaint also alleged a class action on behalf of "those persons in the health field in the State of California with allergies and medical problems due to repeated exposure to said latex gloves."

The trial court eventually sustained defendants' demurrers to the class action allegations without leave to amend, and plaintiffs appeal. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In their original complaint, plaintiffs alleged six causes of action based on defendants' alleged failure to warn of potential dangers associated with exposure to latex. These causes of action included products liability claims predicated on negligence, strict liability and failure to warn; negligent misrepresentation; breach of warranty; and equitable relief in the form of a medical monitoring fund. These claims were asserted on Defendants demurred to the class action allegations, asserting in part that common questions were overshadowed by the unique factual and legal issues presented by each individual claimant. They urged there were such differences on questions of liability, causation, damages and defenses that treatment of this litigation as a class action was inappropriate. The trial court agreed, and commented on the overly broad nature of a class made up of any user of any latex product who suffered any type of injury. The court sustained defendants' demurrer with leave to amend, ruling: "The purported class is not sufficiently defined nor ascertainable. Further, on the face of the complaint, there appears to be no benefit to the court from the litigation if as [sic ] a class action. Plaintiffs may narrow the description of the class as much as plaintiffs are willing to, and the court will rule whether the change is sufficient."

behalf of plaintiffs individually and on behalf of a class consisting of "those persons within the State of California with allergies and medical problems due to latex and latex-related products and specifically including, but not limited to, persons in the medical and dental field in the State of California who are obliged to use, did use, and are using protective gloves, hoods, masks and similar objects."

In their first amended complaint, plaintiffs included the same causes of action, with one exception: they dropped their claim for negligent misrepresentation. Instead of a class composed of any people who had used any latex products, as described in their initial complaint, plaintiffs now described a class "consisting of those persons within the State of California with allergies and medical problems due to repeated exposure to protective latex gloves specifically including persons in the health field in the State of California who are obliged to use, did use, and are using protective latex gloves."

Defendants renewed their demurrer, again asserting in part that there was no ascertainable class and that individual issues predominated. At the hearing on this demurrer, the court noted the problems presented by the fact that plaintiffs had not alleged that they used gloves manufactured by any particular defendant. Defendants pointed out other problems, ranging from the fact that plaintiffs were not the actual purchasers of the gloves and thus did not enjoy the privity required to assert a claim for breach of implied warranty of merchantability, to the fact that each company's knowledge of the risks associated with latex may have varied, to the fact that exposure to other forms of latex may have contributed to any injuries. The court concluded that all of these arguments were troublesome, and sustained the demurrer, ruling: "There is no community of interest and no ascertainable class. Sub-classes would be unmanageable and almost infinite. The interests of the justice system would not be served by allowing a class action." The court continued: "From the complaint it cannot be ascertained which named plaintiff was damaged by which product of which defendant. There is no adequate allegation of injury, nor of causation."

Plaintiffs responded with their second amended complaint, the complaint at issue in this appeal. They reiterated five causes of action, namely, negligence, strict liability, failure to warn, breach of implied warranty of merchantability, and equitable relief in the form of a medical monitoring fund. In describing the class involved in this litigation, plaintiffs stated: "The latex gloves designed, manufactured, produced, promoted, sold, distributed, advertised, supplied, etc[.], by defendants, and each of them, all contained a common protein component that caused the injuries to plaintiffs herein and all other members of the class consisting of those persons in the health field in the State of California with allergies and medical problems due to repeated exposure to said latex gloves." The named plaintiffs further alleged they were bringing their action on behalf of themselves and "other members of a class consisting of those persons with in the State of California with allergies and medical problems due to repeated exposure to protective latex gloves[,] specifically persons in the health field in the State of California who are obliged to use, did use, and are using protective latex gloves."

The complaint outlined the connection of each defendant to latex gloves and asserted named class representative Sharon Tryon used gloves manufactured, designed, sold, and distributed by all of the defendants, while representative Kathleen Kennedy used gloves associated with defendants Baxter Healthcare Corporation, Kendall Healthcare Products Company, and Ansell Medical Incorporated.

Defendants again demurred to the class action allegations of the complaint. They argued that permitting this lawsuit to be tried as a class action would be inappropriate for a number of reasons. Specifically, defendants asserted individual questions would predominate in that defendants manufactured a variety of types of latex gloves, with varying amounts and types of protein in the latex itself. Individuals may have been exposed to this same allegedly harmful protein in their use of other latex products, manufactured by other companies. Individual sensitivities to latex proteins vary and may be exacerbated by the use of certain foods. Class members may have used the product over an extended period of time, giving rise to a possible statute of limitations defense in some cases. As one defendant phrased it, the case involved employees using different gloves manufactured by different defendants over different periods of time with different frequencies of use.

Defendants also questioned whether the named representatives were in fact typical of other class members, given that one of the named plaintiffs had used gloves associated with all of the defendants while another used gloves connected with only three of the defendants.

The trial court ruled: "The demurrers of all defendants to the class action status allegations are sustained without leave to amend. The amendment[s] made subsequent to the court's previous tentative ruling do not materially change the issues and do not affect the court's decision. The court has considered plaintiff[s'] contentions submitted in writing and at oral argument on several occasions, and is convinced that the demurrers should be sustained. The court and the demurring parties have stated the reasons for this ruling, and they need not be repeated here. To point out specific factors at this stage would only emphasize them to the exclusion of other valid points, which need not be repeated. Waiting for an evidentiary hearing on class certification would be incorrect, and wasteful of the time and money of the court and the parties." ²

Plaintiffs appeal from the ensuing order sustaining defendants' demurrers without leave to amend.

APPEALABILITY

We previously denied defendant Johnson and Johnson Medical, Incorporated's motion to dismiss plaintiffs' appeal as taken from a nonappealable order. Defendants renew that claim in their appellate briefs, asserting that because this lawsuit is still viable as to the individual plaintiffs, the present appeal is premature. We disagree.

"The one-final judgment rule generally precludes piecemeal litigation through appeals from orders which dispose of less than an entire action. [Citations.] An order denying class certification does not finally dispose of an action since it leaves it intact as to the individual plaintiff. However, the order is appealable if it...