Rodriguez v. Superior Court

• Decision Date: 02 July 1990
• Docket Number: No. F013111,F013111
• Citation: 221 Cal.App.3d 1371,271 Cal.Rptr. 114
• Parties: , Prod.Liab.Rep. (CCH) P 12,581 Andy RODRIGUEZ, a Minor, etc. et al., Petitioners, v. The SUPERIOR COURT of Kern County, Respondent; GLENBROOK LABORATORIES, etc. Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 114

271 Cal.Rptr. 114

221 Cal.App.3d 1371, Prod.Liab.Rep. (CCH) P 12,581

Andy RODRIGUEZ, a Minor, etc. et al., Petitioners, v. The SUPERIOR COURT of Kern County, Respondent GLENBROOK LABORATORIES, etc. Real Party in Interest.

No. F013111.

Court of Appeal, Fifth District, California.

July 2, 1990.

Rehearing Denied Aug. 1, 1990.

See 271 Cal.Rptr. 908.

Review Denied Sept. 19, 1990.

[221 Cal.App.3d 1372] Peter J. McNulty and Douglas D. Maner, Bel Air, for petitioners.

No appearance for respondent.

Haight, Brown & Bonesteel, Michael J. Bonesteel, Robert L. Kaufman and Jeffrey B. Margulies, Santa Monica, for real party in interest.

OPINION

STONE (Wm. A.), Associate Justice.

Petitioners (plaintiffs) ¹ ask us to determine that the holding of the Supreme Court in Brown v. Superior Court (1988) 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470, abolishing strict liability for the manufacture of a prescription drug, should not be extended to cases of certain nonprescription medications. We will conclude such a consideration is premature. Plaintiff properly pled a cause of action for strict products liability and the trial court erroneously granted the motion for judgment on the pleadings of real party in interest (defendant).

THE CASE AND THE FACTS

Andy Rodriguez, a minor, and Nancy Rodriguez, individually and as the minor's guardian ad litem, are plaintiffs in an action pending in the superior court against several health care providers and defendant, a manufacturer of baby aspirin. The complaint alleges plaintiffs suffered damages when Andy ingested baby aspirin, causing Reyes Syndrome and leaving him severely and permanently injured. The complaint seeks recovery from defendant based in part on a theory of manufacturer's strict liability. The portion of the complaint relevant to our discussion of that theory reads:

"On or about ... 4/26/86--4/30/86 plaintiff was injured by the following product: Orange flavored Bayer Chewable Children's Aspirin, Lot No. 6B301, expiration date, 9/93[.]

"... Each of the defendants knew the product would be purchased and used without inspection for defects. The product was defective when it left the control of each defendant. The product at the time of injury was being ... used in a manner that was reasonably foreseeable by defendants as involving a substantial danger not readily apparent. Adequate warnings of the danger were not given." (Emphasis added.)

These allegations pertain to all counts of the second cause of action entitled "Products Liability." Count one of the second cause of action alleges strict liability as follows:

"Count One--Strict liability of the following defendants who (a) manufactured or assembled the product ...: The Bayer Company, Glenbrook Laboratories, Division of Sterling Drug, Inc., (hereafter 'Bayer') ... (b) designed and manufactured component parts supplied to the manufacturer ...: Bayer ... (c) sold the product to the public ...: Bayer...."

The trial court granted defendant's motion for judgment on the pleadings regarding the strict liability cause of action. Its order stated, in part:

"While it is self-evident that the rationale of Brown v. Superior Court (1988) 44 Cal 3d 1049 [245 Cal.Rptr. 412, 751 P.2d 470] cannot be applied willy-nilly to all over-the-counter medications and nostrums, it is logical to apply it to aspirin, given its status as a beneficial drug whose efficiency is still being investigated in certain applications, and which carries with it certain well-known and unavoidable risks."

DISCUSSION

In determining the correctness of the trial court's granting of the judgment on the pleadings, it is important we keep in mind that we consider only the particular pleading before the trial court and whether it states a cause of action upon which plaintiffs may proceed.

"The standard of review for a judgment on the pleadings is the same as for a judgment following sustaining of a demurrer; we look only to the face of the pleading under attack. [Citations.] The complaint cannot be attacked by reference to matters set forth in the answer. [Citations.] All facts alleged in the complaint are admitted for purposes of the motion and the court determines whether these facts constitute a cause of action. [Citations.] The court may also consider matters subject to judicial notice. [Citations.]" (Hughes v. Western MacArthur Co. (1987) 192 Cal.App.3d 951, 954-955, 237 Cal.Rptr. 738.)

The stage of the proceedings at which we are called upon to decide the propriety of the pleading is critical. The question before us is simply whether plaintiffs have stated a cause of action for strict products liability against the manufacturer of the baby aspirin. We believe they have. Plaintiffs' pleading provides (1) the use of the aspirin was reasonably foreseeable by defendant, (2) the use involved a substantial, foreseeable danger, and (3) adequate warnings were not given.

The pleading falls squarely within the definition of the elements of strict products liability set forth in Brown v. Superior Court, supra, 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470, and Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 200 Cal.Rptr. 870, 677 P.2d 1147. The distinction between prescription and nonprescription drugs is unimportant at this point in the case.

First, we look at Finn. Plaintiff appealed following a jury verdict in favor of the manufacturer of a prescription drug. The theory upon which plaintiff had presented the strict liability portion of his case was that the manufacturer "failed 'to give adequate warning' of the risks of optic nerve atrophy; ..." (Finn v. G.D. Searle & Co., supra, 35 Cal.3d at p. 695, 200 Cal.Rptr. 870, 677 P.2d 1147.) On appeal, plaintiff contended the trial court erroneously introduced negligence principles into his case by altering his proposed jury instructions in certain ways. The Supreme Court noted strict liability cases include those involving a failure to warn:

" 'Failure-to-warn' cases involving claims that the manufacturer knew or should have known of the asserted danger and accordingly should have supplied a warning have been subject in California to a distinct form of analysis in the strict liability arena. The unique nature of the 'defect' within this context was recently well described as follows: '[T]he jury cannot compare the product with other units off the same assembly line, nor can they at least weigh the reasonableness of the design against alternative designs presented by the plaintiff [citat...