Pereira v. Dow Chemical Co.

• Decision Date: 19 March 1982
• Parties: Richard PEREIRA et al., Plaintiffs and Appellants, v. DOW CHEMICAL COMPANY, INC. et al., Defendants and Respondents. Civ. 46210.
• Court: California Court of Appeals Court of Appeals

Page 364

181 Cal.Rptr. 364

129 Cal.App.3d 865

Richard PEREIRA et al., Plaintiffs and Appellants, v. DOW CHEMICAL COMPANY, INC. et al., Defendants and Respondents.

Civ. 46210.

Court of Appeal, First District, Division 1, California.

March 19, 1982.

Dodge, Reyes, Brorby, Randall & Titmus, Siegfried D. Hesse, Robert P. Brorby, Oakland, Cartwright, Sucherman, Slobodin & Fowler, Robert E. Cartwright, San Francisco, Colin C. Kelley, Oakland, for plaintiffs and appellants.

Hall, Henry, Oliver & McReavy, W. Martin Tellegen, Lee H. Cliff, San Francisco, for defendant and respondent Dow Chemical Co., Inc.

Winingham, Roberts & Rogie, John L. Winingham, Shelley A. Kramer, San Francisco, for defendant and respondent General Mills Chemical, Inc.

Moore, Clifford, Wolfe, Larson & Trutner, Clark J. Burnham, J. Jay Schnack, Oakland, for defendant and respondent Central Solvents & Chemicals Co.

Pillsbury, Madison & Sutro, Noble K. Gregory, Noel J. Dyer, William Fisher, San Francisco, for defendant and respondent E. I. du Pont de Nemours & Co.

LEVINS, ^* Associate Justice.

Plaintiffs Richard Pereira and Marlene Pereira, his wife, appeal from orders granting summary judgments in favor of the various defendants in an action to recover damages for personal injuries for permanent, severe kidney disorder sustained by Richard Pereira and for his wife's attendant loss of consortium. Both plaintiffs sought to recover against Dow Chemical Company, Inc. (Dow), as producer of DER 599; General Mills Chemical, Inc. (General), as distributor of GenEpoxy 190; Central Solvents & Chemicals Co. (Central), as distributor of methylene chloride; and E. I. du Pont de Nemours & Company (du Pont), as producer of MOCA. Plaintiffs pled causes of action in strict liability, negligence, and implied warranty with respect to the manufacture, sale, distribution and use of certain chemical products which were used at Richard's place of employment.

On April 6, 1978, and September 7, 1978, the superior court filed its orders granting motions for summary judgment. The court found that no disputable issue of fact existed and that the causes of action asserted were barred by the statute of limitations. The present appeal followed denial of a motion for a new trial.

A review of the factual background shows that Richard Pereira began working for Darrel Finck at Mid Coast Plastic Company (Midcor) from 1970 continuously, except for 10 days in the hospital for diagnostic tests in 1974, until July 29, 1975, when he was terminated. On January 27, 1974, in the course and scope of his employment, he was pouring DER 599 into a drum of GenEpoxy Resin 190. While so pouring, some 599 spilled onto his pants below the protective apron he was wearing. The chemical soaked through his pants and felt like warm water on the skin. He then used methylene chloride, a solvent, to clean off the 599. He continued to wear the pants until he completed the shift and, at home, asked Mrs. Pereira to take particular care in cleaning the pants. He did not feel any physical discomfort and reported the incident to his employer the following day. The manner in which he was mixing the chemicals on January 27, 1974, was a standard procedure at Midcor which he had been performing for three or four years.

Approximately two weeks after the spill a rash about the size of a quarter appeared on each of his legs between his knees and ankles. As he knew, a co-employee had had a similar rash from DER and it had disappeared in a few weeks. Richard's rash did not cause any physical discomfort, and it disappeared within a few weeks without medical treatment.

Sometime after the rash disappeared, he noticed a swelling of his ankles, and, on March 9, 1974, while consulting Dr. William Kosch concerning a vasectomy, asked the doctor about his swollen feet and referred to the spill incident. He was not told the cause of the swelling, and on March 15, 1974, the vasectomy was performed in Kosch's office. No notation was made in the doctor's records with respect to Mr. Pereira's legs. On March 23, 1974, he was seen by Kosch regarding the vasectomy and the doctor's records noted that the swelling extended to the knees. On March 28, 1974, he saw Kosch solely about the leg problem and Kosch scheduled him for hospitalization on April 1, 1974, for an examination relating to a suspected kidney problem. There is no indication that Kosch discussed with Mr. Pereira the possible causes of his swollen legs.

Between March 9 and April 7, 1974, Kosch discussed with Mr. Pereira the possible causal connection between 599 and a nephrotic syndrome. On April 9, 1974, Kosch prepared a "Doctor's First Report of Work Injury" which contained a diagnosis relating to the nephrotic syndrome to 599.

Also between March 9 and April 1, 1974, Mr. Pereira, for the first time, read a label on a DER 599 drum: the only warning thereon related to possible skin irritation. From April 1, 1974, through April 7, 1974, he was hospitalized for tests relating to a suspected nephrotic syndrome and a renal biopsy was performed on April 3, 1974, by Dr. Donald Rice, a kidney specialist consulted by Kosch. Dr. Rice's diagnosis, upon discharge, was nephrotic syndrome, toxic, suspected.

On April 11, 1974, Dr. Rice discussed with Mr. Pereira "the likelihood of possible toxic effects from the chemicals as well as the probable immunologic aspects of his disease. [He] told him that signs of both types of illness were present ...." On April 22, 1974, Dr. Kosch wrote to Midcor's insurance carrier that the cause of the kidney disorder was "most likely toxic, having been caused by the epoxy resin Dow # 599," but this letter was not mailed until January 28 1975. Plaintiffs did not know of the contents thereof until Dr. Kosch's records were subpoenaed for the Workmen's Compensation proceeding, which commenced in late July 1975, less than six months before the complaint herein was filed.

Dr. Rice never told Mr. Pereira that the chemical spill was the cause of the nephrotic syndrome and on April 11, 1974, upon discharge from the hospital, Dr. Rice advised Pereira to return to work "avoiding intimate contact with the chemicals for the moment was all that would be necessary." Mr. Pereira returned to the same work he had been performing. On June 6, 1974, Dr. Rice completed his first report of work injury, wherein he noted a diagnosis of "nephrotic syndrome, toxic, suspected." He did not suggest any possible toxic agent nor did he tell Mr. Pereira then, or at any time, that 599, or any other chemical, was the cause of his kidney problem.

By June 5, 1974, Dr. Kosch noted that the swelling had extended to Mr. Pereira's waist. At trial Mrs. Pereira testified that once the swelling extended to her husband's genitals, their sexual intercourse was completely, or almost completely, interrupted. She also noted a gradual change in her husband's attitudes and activities from mid-1974; he was getting very fatigued and irritable and their sex life began to disintegrate.

On July 16, 1975, a Workmen's Compensation claim was filed. Up to that time, plaintiffs had not seen any medical files. Mr. Pereira was admitted to Stanford University Hospital in late July 1975 for further tests. Dr. Kosch suspected that the epoxy resin 599 had been readily absorbed through the skin and discussed with Mr. Pereira the possible causal connection with his kidney condition. Dr. Rice also discussed with Mr. Pereira the likelihood of possible causal connection between the 599 resin and the nephrotic syndrome. Finally, Dr. Rex L. Jamison, head of the division of nephrology at Stanford Hospital and an associate professor of medicine, noted that: "In my view, the historical circumstances are strongly suggestive of a cause and effect relationship between the spillage of the epoxy resin and the development of this patient's renal disease."

No one at Stanford, however, told Mr. Pereira what his problem was, or what was causing it, except that it had to do with his kidneys. The complaint was filed on January 14, 1976.

Issues

I. Were summary judgments as to each defendant properly granted on the issue of causation?

II. Were plaintiffs' causes of action barred by the statute of limitations?

I

We are of the opinion that there are material factual issues on causation which require the trial process. Dow manufactures and distributes DER 599 and DER 331, the latter of which is purchased by General and resold under the name of GenEpoxy 190. Both of these products are liquid epoxies, used by Midcor in the manufacture of airplane galley doors, and were delivered to Midcor in 55-pound metal drums. DER 599 is a reaction product of epichlorohydrin and brominated phenol and Gen 190 (DER 331) is a reaction product of epichlorohydrin and bisphenol. Both epichlorohydrin and phenol can be toxic, irrespective of the route of exposure--skin contact or inhalation of vapors--and epichlorohydrin has cumulative potential.

Central distributed methylene chloride to Midcor. This is a chemical solvent manufactured by Dow for use as a paint, metal, and carbon remover. The vapor from that liquid chemical compound is harmful and Dow's material safety data sheet for 599 suggests using methylene chloride to clean up a 599 spill. Methylene chloride was also one of the chemicals to whose vapors Mr. Pereira was exposed during his employment. Dr. Donald Whorton's declaration allows that a nephrotic syndrome may be causally related to chronic solvent exposure. He examined Mr. Pereira on May 18, 1977, and is a licensed physician with a practice limited to internal medicine and occupational diseases.

Du Pont manufactured and distributed MOCA, and this chemical was used at Midcor during plaintiff's employment but was not being used by Mr. Pereira on the evening of the 599 spill. Du Pont's own testing established that MOCA could produce cyanogenic effects if absorbed by the body in sufficient quantities. There is no indication as to...