Nanut v. Kimberly-Clark Corp.

• Decision Date: 24 June 1996
• Docket Number: No. 94-16948,KIMBERLY-CLARK,94-16948
• Citation: 89 F.3d 846
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Kristine NANUT; Ann Nanut, Plaintiffs-Appellants, v.CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 846

89 F.3d 846

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Kristine NANUT; Ann Nanut, Plaintiffs-Appellants, v. KIMBERLY-CLARK CORPORATION, Defendant-Appellee.

No. 94-16948.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 1996.

Decided June 24, 1996.

Before: HALL and BRUNETTI Circuit Judges, and WEINER, ¹ Senior District Judge.

MEMORANDUM ²

Kristine Nanut and her mother Ann Nanut brought this suit against Kimberly-Clark Corporation alleging causes of action for strict liability, negligence, negligent infliction of emotional distress and emotional distress on a theory of strict liability. On or about June 24, 1991, Kristine, then eighteen years old, began using Kotex Security Tampons, manufactured by Kimberly-Clark. Three or four days later, she began experiencing flu-like symptoms. On June 30, 1991, Kristine was diagnosed with Toxic Shock Syndrome (TSS) at a local emergency room.

Plaintiffs filed their complaint on May 29, 1992. By Order of July 31, 1992, the district court granted Kimberly-Clark's motion to dismiss Ann Nanut's emotional distress claims. By Order of October 7, 1994, the district court entered summary judgment in favor of Kimberly-Clark on the strict liability claim. ³ The court determined that the plaintiffs failed to establish a triable issue that the product failed to perform as safely as an ordinary consumer of that product would expect. See Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 429, 143 Cal.Rptr. 225, 236 (1978) (A product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner). Ann Nanut's bystander theory of emotional distress was dismissed because the court determined as a matter of law that she could not have perceived the injury causing event, i.e. the growth of microbes in Kristine's system, as it was occurring, a necessary element under California law. See Thing v. La Chusa, 48 Cal.3d 644, 667-8, 257 Cal.Rptr. 865, 880 (1989) (Third person claiming emotional distress on a bystander theory must be present at the scene of the injury producing event at the time it occurs and be then aware that it is causing injury to the victim). The district court dismissed her direct victim theory of emotional distress because there was no allegation that Ann had a preexisting relationship with Kimberly-Clark. See Burgess v. Superior Court, 2 Cal.4th 1064, 1074, 9 Cal.Rptr 615, 619 (1992) (A cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached). Having reviewed the record and the arguments of the parties, we affirm the rulings of the district court.

Kristine argues that the entry of summary judgment was error because she established a triable issue of fact concerning her ordinary expectations in using the tampons. The district court determined that her declaration, appended to her response to the motion, could not establish a triable issue of fact since it contradicted her earlier deposition testimony. In the deposition, she testified that she had read Kimberly-Clark's warning on the side of the tampon package. The warning indicated that use of the product could result in contracting TSS, and the only way to avoid the risk was to not use the product. Kristine testified she understood the warning and understood that there was a risk, albeit slight, that she could contract TSS if she used the product. In her declaration, she stated her subjective belief, based on discussions with her mother and friends, that if she carefully followed the directions and recommendations provided by Kimberly-Clark, she would not contract TSS.

Although the district court noted that pursuant to Radobenko v. Automated Equip. Co., 520 F.2d 540 (9th Cir.1975), the declaration could not create a triable issue since it contradicted the earlier deposition, the court clearly considered the substance of the declaration. Whether the declaration merely "echoed" the deposition testimony, as plaintiffs argue here, or was contradictory, the district court was correct when it held the declaration could not have created a triable issue. The declaration set forth Kristine's subjective beliefs of the risk of harm associated with the use of tampons. Under the consumer expectations test, the court need consider only the expectations of the "ordinary" consumer. Barker 143 Cal.Rptr. at 236. This test is a purely objective standard. Campbell v. General Motors Corporation, 32 Cal.3d 112, 126, n. 6, 184 Cal.Rptr. 891, 900, n. 6 (1982) ("In determining whether a product's safety satisfies the first prong of Barker, the jury considers the expectations of a hypothetical, reasonable consumer, rather than those of the particular plaintiff in the case."). The district court was within its bounds to reject Kristine's subjective belief. Moreover, because the deposition set forth the objective facts that she read the package warning,...