McCreery v. Eli Lilly & Co.

• Decision Date: 06 December 1978
• Citation: 150 Cal.Rptr. 730,87 Cal.App.3d 77
• Court: California Court of Appeals Court of Appeals
• Parties: Nancy J. McCREERY, Plaintiff and Appellant, v. ELI LILLY AND COMPANY, a corporation, Defendant and Respondent. Civ. 17365.

Page 730

150 Cal.Rptr. 730

87 Cal.App.3d 77

Nancy J. McCREERY, Plaintiff and Appellant, v. ELI LILLY AND COMPANY, a corporation, Defendant and Respondent.

Civ. 17365.

Court of Appeal, Third District, California.

Dec. 6, 1978.

Ralph D. Drayton, Sacramento, for plaintiff and appellant.

Richard J. Heafey, Peter W. Davis, John E. Carne, and Crosby, Heafey, Roach & May, Oakland, for defendant and respondent.

EVANS, Associate Justice.

Plaintiff, Nancy J. McCreery, appeals from a summary judgment granted defendant, Eli Lilly and Company, in a product liability action. Plaintiff suffers from a benign cell disorder of the cervix described as vaginal adenosis. She alleges her condition is attributable to her mother's use of diethylstilbestrol (DES) to prevent miscarriage during pregnancy in 1953, and inferentially, she fears that her cell disorder may become malignant.

Plaintiff now asserts liability against defendant, Eli Lilly and Company, notwithstanding her inability to identify the specific manufacturer of the pharmaceutical compound (diethylstilbestrol) taken by her mother, on the theory that defendant was one of at least 142 manufacturers of DES at the time of her conception and as such, was a jointly and severally liable tortfeasor.

By her complaint, plaintiff asserted four causes of action; the first alleged that defendants, Eli Lilly and Company (Lilly) and 30 Does, were the manufacturers and suppliers of the drug known as diethylstilbestrol, and negligently tested, manufactured, and marketed the drug; the second alleges that Lilly and 30 Does "designed, manufactured, distributed and sold a defective product, to wit, DES;" the third alleges that Lilly and the Does falsely labeled and misrepresented to plaintiff and her mother's physician material facts about the drug. The second and third causes of action seek to impose strict product liability. The fourth cause of action is for the physician's alleged malpractice in prescribing the drug.

Discovery revealed that plaintiff did not know and could not ascertain the specific pharmaceutical compound taken by her mother or the identify of the manufacturer; that her mother was unable to remember the name, color, dosage, or dosage frequency of the medication taken; that her mother had not relied upon any advertising by Lilly and did not suffer any side effects after taking the drug; that her mother's doctor could not recall the drug prescribed or whether he had preferred one manufacturer's drug over that of another; that the pharmacy that had filled the prescription had been sold upon the owner's retirement and that the records pertaining to the prescription had been destroyed; and that the only record relating to the prescription kept by the doctor during the period of pregnancy stated only that " 'Des stilbesterol 25 mgs., b. i. d. beginning the first day of her period.' . . . 'continued to take stilbesterol.' . . . 'patient was nausiated (Sic ) by two stilbesterols a day. . . .' "

Moreover, counsel for plaintiff concedes that he named Lilly as a defendant only after consulting a 1970 copy of a Physician's Desk Reference Book and finding Lilly listed as the only manufacturer of diethylstilbestrol but now acknowledges that the identity of the manufacturer of the specific drug taken cannot, under any circumstances, be identified.

Upon these facts, defendant moved for and was granted summary judgment.

The sole issue on appeal is whether, notwithstanding plaintiff's stipulation that she is unable to ascertain the identity of the manufacturer of the drug taken by her mother, liability may be imposed upon one of over 142 companies which, in 1953, was manufacturing that drug.

An important purpose and reason for the summary judgment procedure is to protect the rights of the parties from spurious or meritless complaints or answers, and to expedite litigation by avoiding needless trials. (Buffalo Arms, Inc. v. Remler Co. (1960) 179 Cal.App.2d 700, 4 Cal.Rptr. 103; Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 277 P.2d 464; Baron v. Mare (1975) 47 Cal.App.3d 304, 307, 120 Cal.Rptr. 675.)

The essential aims of the summary judgment motion as well as the applicable rules to be applied in considering the motion were succinctly set forth in Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788. The court there said, "The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts." (See also Pittman v. Pedro Petroleum Corp. (1974) 42 Cal.App.3d 859, 862, 117 Cal.Rptr. 220).

The trial court's decision must be determined on the basis of the papers filed at the time the court considered the motion, not in the light of documents filed subsequent to the trial court's resolution of the issue. (Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 966, 123 Cal.Rptr. 309; Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499, 507, 125 Cal.Rptr. 872; Green v. Green (1963) 215 Cal.App.2d 37, 46, 30 Cal.Rptr. 23; Dryer v. Dryer (1964) 231 Cal.App.2d 441, 451, 41 Cal.Rptr. 839.)

Furthermore, in determining whether triable issues are presented, the court may not consider the allegations of the complaint except to the extent they are not controverted by affidavits on either side. (Cox v. State of California (1970) 3 Cal.App.3d 301, 309, 82 Cal.Rptr. 896.)

The trial court must grant a motion for summary judgment if "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c.)

The proposition that justice is generally better served when cases are heard on their merits is a common axiom. There are also instances when justice will be better served by summary disposition, and this is such a situation.

In our consideration of the propriety of the judgment relieving defendant, Eli Lilly, from liability, we note that whether liability is asserted under a strict liability or negligence theory, the plaintiff has the burden of proving that the defendant's defective product proximately caused the injury. (See Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 704, 106 Cal.Rptr. 1, 505 P.2d 193; Cronin v. J. B. E Olson Corp. (1972) 8 Cal.3d 121, 127, 134-135, 104 Cal.Rptr. 433, 501 P.2d 1153; Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 715, 127 Cal.Rptr. 745; Culpepper v. Volkswagen of America, Inc. (1973)33 Cal.App.3d 510, 519, 109 Cal.Rptr. 110; Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 435, 79 Cal.Rptr. 369.)

As stated previously by this court, ". . . the Greenman theory of strict tort liability arising from defective manufactured products is premised on proof of a causal relationship between the defect and the injury. Nothing in Greenman or Vandermark dispenses with proof of proximate cause. (See Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d (57) at p. 62, 27 Cal.Rptr. 697, 377 P.2d 897; Vandermark v. Ford Motor Co. (1964) 61 Cal.2d (256), at p. 263, 37 Cal.Rptr. 896, 391 P.2d 168.)" Greening v. General Air-Conditioning Corp. (1965) 233 Cal.App.2d 545, 549, 43 Cal.Rptr. 662, 665.)

Manufacturers and designers of products are held strictly liability in tort for injuries caused by their products when the following elements are present: (1) the product is placed on the market; (2) there is knowledge that it will be used without inspection for defect; (3) the product proves to be defective; and (4) the defect causes injury to a human. (See Baker v. Chrysler Corp., supra, 55 Cal.App.3d at p. 715, 127 Cal.Rptr. 745.) Inherent in that liability thesis is the proposition that the identity of the manufacturer must be ascertained and proved.

There is no merit in any possible contention that the judicially evolved application of comparative negligence to products liability in some way obviates the necessity of a showing that the defendant's product was the proximate cause of injury.

As stated by the Supreme Court in Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162: ". . . strict liability has never been, and is not now, Absolute liability. As has been repeatedly expressed, under strict liability the manufacturer does not thereby become the insurer of the safety of the product's user. (Citations.) On the contrary, The plaintiff's injury must have been caused by a 'Defect ' in the product." (Emphasis in original and added.) (20 Cal.3d at p. 733, 144 Cal.Rptr. at p. 384, 575 P.2d at p. 1166.) ". . . Regardless of the identity of a particular defendant or of his position in the commercial chain The basis for his liability remains that he has marketed or distributed a defective product." (Emphasis added.) (20 Cal.3d at p. 739, 144 Cal.Rptr. at p. 388, 575 P.2d at p. 1170.)

Moreover, it is not a general rule in the field of products liability that the manufacturer of a defective...