Ramirez v. Plough, Inc., No. F015950

CourtCalifornia Court of Appeals
Writing for the CourtTHAXTER; MARTIN, Acting P.J., and BIANCHI
Citation15 Cal.App.4th 1110,12 Cal.Rptr.2d 423
PartiesPreviously published at 15 Cal.App.4th 1110, 9 Cal.App.4th 1895 15 Cal.App.4th 1110, 9 Cal.App.4th 1895, 61 USLW 2277, Prod.Liab.Rep. (CCH) P 13,367 Jorge RAMIREZ, a Minor, etc., Plaintiff and Appellant, v. PLOUGH, INC., Defendant and Respondent.
Docket NumberNo. F015950
Decision Date07 October 1992

Page 423

12 Cal.Rptr.2d 423
Previously published at 15 Cal.App.4th 1110, 9 Cal.App.4th 1895
15 Cal.App.4th 1110, 9 Cal.App.4th 1895, 61 USLW 2277,
Prod.Liab.Rep. (CCH) P 13,367
Jorge RAMIREZ, a Minor, etc., Plaintiff and Appellant,
v.
PLOUGH, INC., Defendant and Respondent.
No. F015950.
Court of Appeal, Fifth District, California.
Oct. 7, 1992.
Certified for Partial Publication *
As Modified on Denial of Rehearing
Oct. 30, 1992.
Review Granted Dec. 31, 1992.

Page 425

[15 Cal.App.4th 1113] Robert L. Davis, Leonard & Lyde, Chico, for plaintiff and appellant.

Charles F. Preuss, Kevin G. McCurdy, Bronson, Bronson & McKinnon, San Francisco, Harold D. Murry, Jr., Clifford & Warnke, and Katherine D. McManus, Howrey & Simon, Washington, D.C., for defendant and respondent.

OPINION

THAXTER, Associate Justice.

Jorge Ramirez, a minor, by his guardian ad litem Rosa Rivera, appeals from a summary judgment in favor of Plough, Inc. Appellant [15 Cal.App.4th 1114] sued Plough alleging negligence, product liability and fraud. The action sought damages for injuries sustained in March of 1986 when Jorge, who was then four months old, contracted Reye's Syndrome after ingesting St. Joseph Aspirin for Children (SJAC). Plough marketed and distributed SJAC.

Papers submitted in support of and in opposition to the motion for summary judgment reflect some conflicts in the facts. Because this is an appeal from a summary judgment, we resolve those conflicts in favor of the nonmoving party, appellant. (Chesney v. Gresham (1976) 64 Cal.App.3d 120, 125, 134 Cal.Rptr. 238.

Reye's Syndrome is a serious disease of unknown cause characterized by severe vomiting, lethargy, or irritability which may progress to delirium or coma. The disease generally strikes children or teenagers who are recovering from a mild respiratory tract infection, influenza, chicken pox, or other viral illness. The mortality rate of the disease is high, and permanent brain damage occurs in many cases. As a result of contracting Reye's Syndrome, appellant suffered catastrophic injuries including quadriplegia, blindness, and profound mental retardation.

In the early 1980's, there was significant scientific debate concerning the cause of Reye's Syndrome. Several state studies suggested a statistical association between the ingestion of aspirin and the disease. In December 1982, the federal government acknowledged the debate. After considering the state studies and their critics, the federal government rejected a proposal which would require a warning label and instead, undertook an independent study. Apparently, Plough participated in efforts to influence government officials and agencies to reject the label proposal which Plough considered premature.

In December 1985, the Food and Drug Administration (FDA) requested that aspirin manufacturers voluntarily place a label on aspirin products warning consumers of the possible association between aspirin and Reye's Syndrome. Plough voluntarily complied and began including a warning and insert in SJAC packaging. On June 5, 1986, the Reye's Syndrome warning became mandatory. 1

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In March 1986, SJAC labeling bore the following warning:

"WARNING: Reye Syndrome is a rare but serious disease which can follow flu or chicken pox in children and teenagers. While the cause of Reye Syndrome is unknown, some reports claim aspirin may increase the risk of developing this disease. Consult doctor before use in children or teenagers with flu or chicken pox."

[15 Cal.App.4th 1115] In addition, the SJAC package insert included the following statement:

"The symptoms of Reye Syndrome can include persistent vomiting, sleepiness and lethargy, violent headaches, unusual behavior, including disorientation, combativeness and delirium. If any of these symptoms occur, especially following chicken pox or flu, call your doctor immediately, even if your child has not taken any medication. REYE SYNDROME IS SERIOUS, SO EARLY DETECTION AND TREATMENT ARE VITAL."

Rosa Rivera purchased SJAC on March 12, 1986, and administered it to appellant who was suffering from what appeared to be a cold or upper respiratory infection. She gave appellant the aspirin without reading the directions or warnings appearing on the SJAC packaging. The packaging was in English and Ms. Rivera can speak and understand only Spanish. She did not seek to have the directions or warnings translated from English to Spanish, even though members of her household spoke English.

The trial court granted Plough's motion for summary judgment on the grounds that "there is no duty to warn in a foreign language and there is no [causal] relationship between plaintiff's injury and defendant's activities." Before granting that motion the court issued a protective order preventing appellant from discovering evidence regarding Plough's activities in petitioning government agencies and officials. Appellant claims the court erred in both rulings.

DISCUSSION

I. Standard of Review.

The purpose of the summary judgment procedure is to penetrate evasive language and adept pleading and to ascertain the existence or absence of triable issues. (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 668, 150 Cal.Rptr. 384.) Summary judgment is also intended to prevent the unnecessary expense of spurious and meritless litigation and needless trials. (McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 81, 150 Cal.Rptr. 730.) Summary judgment is properly granted only when the evidence in support of the moving party establishes there is no issue of fact to be tried and the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134; Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.)

On appeal, review is limited to the facts presented to the trial court. The appellate court must independently review the record to determine [15 Cal.App.4th 1116] whether the moving party is entitled to judgment as a matter of law. (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 391, 268 Cal.Rptr. 96; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1618, 264 Cal.Rptr. 756; AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

II. The Adequacy of the Warning Is a Jury Question Involving Disputed Issues of Fact.

The trial court granted summary judgment for Plough stating "there is no duty to warn in a foreign language and there is no [causal] relationship between the plaintiff's injury and defendant's activities." Appellant argues everyone has a general duty to exercise ordinary care pursuant to Civil Code section 1714. Therefore, the issue is not whether Plough had a duty to warn but whether its failure to warn in Spanish constitutes a failure to exercise ordinary care under the circumstances (because the injury is foreseeable) and whether the warning given was adequate. This,

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he argues, is a question of fact for the jury.

There is confusion about the interplay between the concept of foreseeability and the concept of duty. The Supreme Court has explained the relationship between the two as follows:

"The confusion may stem, at least in part, from the fact that the 'foreseeability' concept plays a variety of roles in tort doctrine generally; in some contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in defining the boundaries of 'duty.'

"The question of 'duty' is decided by the court, not the jury. [Citations omitted.] As this court has explained, 'duty' is not an immutable fact of nature ' "but only an expression of the sum total of those considerations of policy which lead the law to say the particular plaintiff is entitled to protection." ' [Citations omitted.]" (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

The factors to be considered in determining whether a duty exists include the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the conduct, the policy of preventing future harm, the extent of the burden to the defendant, and the consequences to the community of imposing a duty to [15 Cal.App.4th 1117] exercise care with resulting liability for breach. (Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

The California Legislature has imposed on manufacturers of drugs a duty to warn "in such manner and form as are necessary for the protection of users." (Health & Saf.Code, § 26638.) So has the federal government. (21 U.S.C. § 352.) The courts in California have balanced the above listed factors and confirmed what the executive and legislative branches have stated in statute and regulation: manufacturers of drugs--prescription and over-the-counter--must warn consumers of known risks or hazards associated with the intended use of their products. Manufacturers are also required to instruct as to proper usage and dosage. (Brown v. Superior Court (1988) 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470; Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 699-700, 200 Cal.Rptr. 870, 677 P.2d 1147; Rodriguez v. Superior Court (1990) 221 Cal.App.3d 1371, 1374-1375, 271 Cal.Rptr. 114.)

Tort liability for failure to warn may arise under either negligence or strict liability theories. Negligent failure to warn requires a showing that a manufacturer did not warn of a particular risk for reasons which fell below the acceptable standard of care, that is, what a reasonable manufacturer would have known and would have warned about. Strict liability requires only a showing that the manufacturer did not adequately warn of a risk known or knowable in light of the available information at the...

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2 practice notes
  • Ramirez v. Plough, Inc., No. S029777
    • United States
    • United States State Supreme Court (California)
    • December 9, 1993
    ...liability, and fraud. The trial court granted summary judgment for defendant. On plaintiff's appeal, the Court of Appeal reversed, 15 Cal.App.4th 1110, 12 Cal.Rptr.2d Viewing the appellate record in light of the standard of review for summary judgments (Code Civ.Proc., § 437c; Molko v. [863......
  • Ramirez v. Plough, Inc., No. S029777
    • United States
    • United States State Supreme Court (California)
    • December 31, 1992
    ...v. PLOUGH, INCORPORATED, Respondent. No. S029777. Supreme Court of California, In Bank. Dec. 31, 1992. Prior report: Cal.App., 12 Cal.Rptr.2d 423. Petition for review LUCAS, C.J., and MOSK, PANELLI, KENNARD, ARABIAN and GEORGE, JJ., concur. ...
2 cases
  • Ramirez v. Plough, Inc., No. S029777
    • United States
    • United States State Supreme Court (California)
    • December 9, 1993
    ...liability, and fraud. The trial court granted summary judgment for defendant. On plaintiff's appeal, the Court of Appeal reversed, 15 Cal.App.4th 1110, 12 Cal.Rptr.2d Viewing the appellate record in light of the standard of review for summary judgments (Code Civ.Proc., § 437c; Molko v. [863......
  • Ramirez v. Plough, Inc., No. S029777
    • United States
    • United States State Supreme Court (California)
    • December 31, 1992
    ...v. PLOUGH, INCORPORATED, Respondent. No. S029777. Supreme Court of California, In Bank. Dec. 31, 1992. Prior report: Cal.App., 12 Cal.Rptr.2d 423. Petition for review LUCAS, C.J., and MOSK, PANELLI, KENNARD, ARABIAN and GEORGE, JJ., concur. ...

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