Sanderson v. Iff, CV-95-3387-SVW (VAPX)

• Decision Date: 11 July 1996
• Docket Number: No. CV-95-3387-SVW (VAPX),CV-95-3387-SVW (VAPX)
• Citation: 950 F.Supp. 981
• Court: U.S. District Court — Central District of California
• Parties: Judith SANDERSON, Plaintiff, v. INTERNATIONAL FLAVORS AND FRAGRANCES, INC., a New York Corporation, et al., Defendants.

950 F.Supp. 981

Judith SANDERSON, Plaintiff, v. INTERNATIONAL FLAVORS AND FRAGRANCES, INC., a New York Corporation, et al., Defendants.

No. CV-95-3387-SVW (VAPX)

United States District Court, C.D. California.

July 11, 1996.

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Michael N. Friedman, Michael N. Friedman Law Offices, Los Angeles, CA, for plaintiff Judith Sanderson.

Stephen A. Kroft, Bryan Thomas Castorina, McDermott Will & Emery, Los Angeles, CA, for defendant International Flavors & Fragrances Inc.

William J. Sayers, Jeffrey B. Margulies, Farah Sohaili Nicol, Haight Brown & Bonesteel, Santa Monica, CA, for defendants Parfums Guy Laroche, Cosmair Inc.

Michael J. Bonesteel, Jeffrey B. Margulies, Caroline S. Craddock, Haight Brown & Bonesteel, Santa Monica, CA, for defendant Calvin Klein Jeanswear Co. Inc.

Robert A. Grantham, Murchison & Cumming, Los Angeles, CA, for defendants Coty Inc., Landcaster Group.

Jeffrey S. Barron, Janet Marie Richardson, Morris Polich & Purdy, Los Angeles, CA, for defendant The Body Shop Inc.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF CAUSATION AND GRANTING DEFENDANTS' MOTION TO EXCLUDE PLAINTIFF'S EXPERT WITNESSES ON THE ISSUE OF CAUSATION

WILSON, District Judge.

BACKGROUND

Plaintiff Judith Sanderson filed this action in state court against defendant International Flavors and Fragrances, Inc. ("IFF") for personal injuries stemming from her exposure to various perfumes and colognes ("fragrance products"), seven of which she identified in her complaint: Boss, Drakkar Noir, Stetson, Joop! Homme, Calvin Klein's Obsession, Davidoff's Cool Water, and Freesia ("the seven fragrances"). IFF removed to this Court, and plaintiff added several other defendants whom she had previously sued as Does, all of whom are alleged to be manufacturers or distributors of one or more of the seven fragrances.

IFF filed three separate motions: a motion for summary judgment on the issue of the statute of limitations; a motion for summary judgment on the issue of causation; and a motion for an order excluding plaintiff's expert witnesses on the issue of causation. The other defendants have filed joinders, sometimes with additional argument of their own. The Court held a hearing on these motions on July 1, 1996. In a separate Order, the Court denied defendants' motion for summary judgment based on the statute of limitations. In this Order, the Court addresses defendants' other two motions, and for the reasons expressed herein, grants defendants' motion for summary judgment on the issue of causation.

DISCUSSION

I. CAUSATION

Plaintiffs complaint pleads two causes of action: negligence and strict liability. Under California law, which supplies the rule of decision in this diversity action, causation is an essential element of both claims. "The general rule is that the burden of proof is on the plaintiff to establish that the injuries she suffered were caused by the conduct of the defendant." Murphy v. E.R. Squibb & Sons, Inc., 40 Cal.3d 672, 221 Cal.Rptr. 447, 453-54, 710 P.2d 247, 253 (1985); Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal. Rptr. 132, 136, 607 P.2d 924, 928 (1980). "The law is well-settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.... A possible cause only becomes `probable' when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury." Jones v. Ortho Pharmaceutical Corp., 163 Cal.App.3d 396, 209 Cal.Rptr. 456, 460 (2 Dist.1985) (citations omitted); Cottle v. Superior Court (Oxnard Shores Co.), 3 Cal.App. 4th 1367, 5 Cal. Rptr.2d 882, 892 (2 Dist.1992).

It should be emphasized that expert testimony is required to establish causation, since this case involves scientific issues that are "beyond the experience of laymen." Id. 209 Cal.Rptr. at 461 ("in the absence of factual circumstances of probability understandable to a jury there must be some scientific testimony that can be interpreted as an inference of hypothetical probability before we can allow a jury to speculate upon the rights of citizens") (quoting Parker v. Employers Mut. Liability Ins. Co. of Wisconsin, 440 S.W.2d 43, 49 (Tex.1969)). Plaintiff therefore cannot withstand summary judgment by relying on her own testimony about her exposures to defendants' products and her alleged injuries or by arguing for an inference of causation from "the totality of the circumstances." Cottle, 5 Cal.Rptr.2d at 892 ("In California, causation must be founded upon expert testimony and cannot be inferred from the jury's consideration of the totality of the circumstances unless those circumstances include the requisite testimony on causation.").

Plaintiff has presented declarations from four experts on various aspects of the issue of causation: Nachman Brautbar, M.D., an internist and nephrologist; Gunnar Heuser, M.D., an internist; Richard Perillo, Ph.D., a neuropsychologist; and Jack Thrasher, Ph. D., an anatomist and cell biologist.

In order to prove that a defendant's conduct was the cause in fact of her injuries, a plaintiff must establish that such conduct was "a substantial factor in bringing about the injury." Lineaweaver v. Plant Insulation Co., 31 Cal.App. 4th 1409, 37 Cal.Rptr.2d 902, 905 (1 Dist.1995). Thus, in order to hold a defendant liable, plaintiff must prove "a reasonable medical probability based upon competent expert testimony that the defendant's conduct contributed to plaintiff's injury." Id. (citation omitted). To withstand summary judgment as to a defendant, then, plaintiff must present evidence from which a rational jury could find such a reasonable medical probability as to that defendant's conduct.

IFF argues that plaintiff cannot survive summary judgment on a normal causation theory, since none of plaintiff's experts could say that there was a reasonable medical probability that either Boss or Drakkar Noir (the only two of the seven fragrances for which IFF manufactures the concentrated fragrance oils) contributed to her injuries. The other defendants make the same argument as to their products. Defendants further argue that plaintiff cannot survive summary judgment on a market-share liability theory or by otherwise shifting the burden of (dis)proving causation to defendants.¹

Plaintiff makes three arguments in opposition. First, she argues that a jury could in fact find, based on her experts' testimony, that defendants' products were a substantial factor in causing her injuries. The Court disagrees. While a jury could probably find that defendants' products, as a whole, were a substantial factor in causing her injuries, plaintiff has no evidence whatever from which a jury could find that any particular defendant's products were.

Second, she argues in essence that the Court should adopt a "common-sense," lay interpretation of causation. She contends that because her injuries are of the type caused by defendants' products, she was exposed to same, and there is a temporal connection between such exposures and her experience of symptoms, a jury could find that defendants' products caused her injuries. Whatever the "common-sense" appeal of this argument, it fails because California law clearly requires expert testimony on causation in a case like this. In addition, this argument equates symptoms with injuries, but her experts testify unanimously that they cannot say that she was injured each time she experienced a symptom.

Finally, plaintiff argues that, based upon fairness grounds, the Court should shift the burden on causation to defendants. In so arguing, plaintiff does not exactly urge the application of market-share liability under Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980), or alternative liability under Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948); rather, she asks the Court to apply "some type of modified market share theory of liability." Based upon its review of the California authorities, the Court concludes that such burden-shifting is limited to cases meeting the criteria of either Sindell or Summers, and, as plaintiff implicitly recognizes in arguing for a "modified" burden-shifting theory, this case does not fall within either one. Mindful of its role as a federal court sitting in diversity, the Court therefore declines to effect the "modification" which plaintiff advocates.

A. Traditional, Direct Causation

Plaintiff's claimed injuries are sinus inflammation, toxic encelopathy (brain damage), dysosmia (deranged sense of smell), small airways disease (or reactive airways disease), and multiple chemical sensitivity ("MCS").² Brautbar Depo. 37/20-39/6; Heuser Depo. 64/23-68/19; 118/4-120/12; Thrasher Depo. 84/2-85/5. Plaintiff contends that her injuries were caused by her acute exposures to formaldehyde in the 1960s, 1970s, and 1980s, and exacerbated by thousands of exposures to fragrance products containing aldehydes between 1993 and the present. Pl.Depo. 374/15-383/25; Brautbar Depo. 46/8-47/20; 65/8-67/9; 69/16-70/9; 155/12-22; 318/5-320/25; Heuser Depo. 70/8-23; Thrasher Depo. 101/11-17; Thrasher Decl. ¶ 13.³

Plaintiff alleges that she was exposed to fragrance products on over 16,000 occasions between April 1994 and October 1995. Pl. Depo. 1022/7-1023/5; Feb. 8, 1996 letter from Friedman to Kroft at 3 (Exh. A to Kroft Decl.). (Plaintiff originally testified that she had been exposed to fragrance products over ten times per day, but she corrected her deposition transcript to state that the proper figure was 30, which works out to over 16,000 exposures during that time period.) For 70 percent of those occasions, plai...