Rodriguez v. Superior Court, No. F013111

• Court: California Court of Appeals
• Writing for the Court: BEST, Acting P.J., and VARTABEDIAN
• 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.
• Decision Date: 02 July 1990
• Docket Number: No. F013111

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 [221 Cal.App.3d 1373] 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

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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 [221 Cal.App.3d 1374] 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...