Opinion
As Modified Oct. 24, 1996.
Review Dismissed in Part July 30, 1997.
Previously published at 49 Cal.App.4th 845, 50 Cal.App.4th 917A
Robins, Kaplan, Miller & Ciresi, Bruce A. Finzen, Minneapolis, Joseph L. Dunn and Alexandra M. Day, Costa Mesa, for Plaintiffs and Appellants.
McInnis, Fitzgerald, Rees & Sharkey, Cary W. Miller, San Diego, Baker & Hostetler, Peter W. James, Angela C. Agrusa, Los Angeles, Nixon, Hargrave, Devans & Doyle, William D. Eggers, David H. Tennant, Rochester, NY, Mayer, Brown & Platt, Herbert L. Zarov, Michele L. Odorizzi, Chicago, IL, Daniel J. Delaney, Los Angeles, Morris, Polich & Purdy, Anthony G. Brazil, Douglas J. Collodel and Janet M. Richardson, Los Angeles, for Defendants and Respondents.
BENKE, Acting Presiding Justice.
Plaintiffs in this coordinated products liability litigation are a group of women who received silicone breast implants manufactured by, among others, Dow Corning Corporation (Dow Corning). Dow Corning is now the subject of a bankruptcy proceeding. In addition to their claims against Dow Corning, plaintiffs have made claims against defendants and respondents Dow Chemical Company (Dow) and Corning Incorporated (Corning), the corporate parents of Dow Corning. Plaintiffs assert scientific research Dow and Corning supplied to Dow Corning was inadequate and that this inadequacy makes Dow and Corning directly liable for the injuries plaintiffs suffered.
We recognize that under enumerated circumstances the Restatement 2d of Torts section 324A imposes liability on those who provide services which are designed to protect third persons from harm. However, in this case we reject plaintiffs' attempt to impose I
FACTUAL SUMMARY
A. Dow, Corning and Dow Corning
In 1943 Dow and Corning formed Dow Corning. Dow and Corning each contributed to Dow Corning technology and royalty free licenses under patents they held in the field of organo-silicon compounds. Dow and Corning each received 50 percent of the stock of Dow Corning.
Over the following decades Dow and Corning rendered a number of services to Dow Corning. In particular, in 1948 three Dow scientists, V.K. Rowe, H.C. Spencer and S.L. Bass, published an article in which they stated that they had performed toxicological research on silicones and found that as a group silicones have a very low order of toxicity.
The 1948 article did however contain warnings about some potential hazards posed by various silicone compounds. In particular the report stated that some types of silicones caused irritation, inflammation, edema and necrosis, that vapors of volatile silicones caused death in a saturated atmosphere and that exposure to low vapor concentrations resulted in slowed growth in guinea pigs and slight increase in the weight of their liver and the kidneys. The report stated other silicone compounds caused an enlargement of the spleen at high dosages and that most of the compounds tested caused varying degrees of eye irritation.
Throughout the following 40 years both Dow and Dow Corning performed further toxicological tests on silicone. In 1954 Dow and Dow Corning jointly co-operated in commissioning a long term study of the toxicity of a particular type of silica dust Dow Corning was producing. The study was performed because the purity of the silica dust made it useful "in applications such as reproduction paper and other paper coatings. The material is of interest to the pharmaceutical and cosmetic industries because of its fineness, chemical purity, and lack of abrasive characteristics. The combination of the particular physical properties of this silica makes it valuable to the paint, varnish, ink, rubber, plastic, and adhesive industries." The study was performed by the Saranac Lake Laboratories and published in 1957. The study concluded that exposing rats to high levels of the silica dust severely damaged their pulmonary systems.
In 1956 Dow Corning, with the help of a Dow employee, M.B. Chenoweth, conducted a study with respect to whether silicone compounds migrated when placed in mammals' bodies. The study found that a silicone compound later used in breast implants migrated throughout dogs when administered orally and throughout a rat when injected intramuscularly. A short time later the same researcher reported that, when absorbed through the skin, small amounts of the same silicone compound reached a rabbit's adrenal glands and kidneys.
Another 1956 study commissioned by Dow Corning and conducted by Dow was designed to determine whether silicone fluids "can be tolerated when injected intravenously and if so, in what amount." In asking Dow to perform the study, the Dow Corning researcher advised his counterpart at Dow that "[t]he immediate utility of the answer is not too apparent, but the question has been asked repeatedly and we would like to be in a position to reply with some knowledge."
In 1957 Dow and Dow Corning also co-operated with and provided funding for toxicology research conducted by the University of Miami. In its report on the research it In 1959 Dow, again at the request of Dow Corning, performed a study which showed that silicone caused eye irritation. The author of the study believed that the irritation was not caused by any chemical reaction to silicone but by the fact that silicone may have reduced the surface tension of the eyeball.
By way of a 1975 agreement, Dow and Corning permitted Dow Corning to use their tradenames and trademarks and in return the corporate parents retained the right to inspect Dow Corning's manufacturing processes to assure the quality of its products. Dow also lent and leased Dow Corning physical facilities in which Dow Corning performed tests on silicone products.
Eventually Dow Corning grew into a Fortune 500 company with net sales in 1991 of over $1.8 billion. Over the years, Dow Corning developed over 4,500 different silicone products, including the silicone gel breast implants at issue here.
B. Breast Implants
Because of inquiries from the medical community with respect to the potential medical application of silicones, in 1959 Dow Corning established a Center for Aid to Medical Research. In 1961 a plastic surgeon, T.D. Cronin, contacted Dow Corning with respect to the possibility of using silicones for breast implants. Dow Corning eventually employed Cronin and in 1962 clinical trials on Dow Corning breast implants commenced.
In 1964, Dow Corning formed its Medical Products Division to market breast implants and other medical devices using silicone technology. Plaintiffs concede that neither Dow nor Corning participated in the design, manufacturing or marketing of Dow Corning's breast implants. Although Dow Corning continued to receive toxicological research from Dow following introduction of breast implants, Dow Corning's Medical Products Division had its own staff of chemists and experts in the area of biocompatibility and toxicity. Since its formation the Medical Products Division worked with over 35,000 doctors from all over the world and developed a medical library with 3,000 articles.
C. FDA Approval
At the time Dow Corning began marketing breast implants, medical devices were not regulated by the Food & Drug Administration (FDA). In 1991 Dow Corning submitted to the FDA a 25,000-page application for approval of breast implants. The application included literally hundreds of tests, including toxicological tests performed by Dow.
II
PROCEDURAL HISTORY
Starting in the early 1990's thousands of lawsuits were filed against the manufacturers of silicone breast implants and others. The actions filed in federal courts were consolidated in a multi-district action heard in the Northern District of Alabama. (See In re Silicone Gel Breast Implants Products Liability Litigation (MDL 926) (N.D.Ala.1993) 837 F.Supp. 1128 (MDL-I )). In the multi-district litigation case the district court initially dismissed plaintiffs' claims against Dow and Corning. (Id. at pp. 1140-1142.) Thereafter, the district court reinstated the plaintiffs' claims against Dow. (In re Silicone Gel Breast Implants Products Liability Litigation (1995) 887 F.Supp. 1455, 1460-1461 (MDL-II).)
In California the breast implant cases were coordinated in this proceeding in December 1992. Following coordination, plaintiffs adopted a master complaint which pleaded a number of causes of action, including strict liability, negligence, breach of warranty, deceit and infliction of emotional distress. Dow and Corning adopted a master answer. In late 1993 the trial court approved a master set of interrogatories to the defendants and a The first of the coordinated cases was set for trial in the spring of 1994. In February 1994, Dow and Corning filed their respective motions for summary judgment. Plaintiffs responded by requesting further discovery. The trial court denied the request for additional discovery and granted Dow and Corning's motions. Thereafter the trial court entered judgment in favor of Dow and Corning and plaintiffs filed a timely notice of appeal.
III
The standard of review which governs our review of a judgment entered following an order granting summary judgment is well established: "A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.] To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. [Citation.] We shall examine the grant of summary judgment in this case with the foregoing standard in mind." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46, fn. omitted.)
A. Restatement 2d Torts Section 324A
In the trial court and on appeal plaintiffs have not argued that Dow or Corning is the alter ego of Dow Corning, that the corporate veil may be pierced or that Dow or Corning had a duty to supervise the manufacturing and marketing of Dow Corning's products. Rather, in their principal argument on appeal, plaintiffs contend the record presented in the trial court will permit imposition of direct liability on Dow and Corning under the provisions of the Restatement 2d Torts, section 324A. The Restatement provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if [p] (a) his failure to exercise reasonable care increases the risk of such harm, or [p] (b) he has undertaken to perform a duty owed by the other to the third person, or [p] (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." (Rest.2d Torts, § 324A.)
See Heinrich v. Goodyear Tire and Rubber Co. (D.C.Md.1982) 532 F.Supp. 1348, 1351, footnote 5.
Section 324A has been accepted in California and other jurisdictions as a valid basis for imposing liability. (See FNS Mortgage Service Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1572, 29 Cal.Rptr.2d 916 [S]; Kohr v. Johns-Manville Corp. (E.D.Pa.1982) 534 F.Supp. 256, 257-259; Deines v. Vermeer Mfg. Co. (D.Kan.1990) 752 F.Supp. 989, 994 (Deines ); Arnstein v. Manufacturing Chemists Ass'n, Inc. (E.D.Pa.1976) 414 F.Supp. 12, 14-15; King v. National Spa and Pool Institute (Ala.1990) 570 So.2d 612, 614; Hempstead v. General Fire Extinguisher Corporation (D.Del.1967) 269 F.Supp. 109, 118; Miller v. Bristol-Myers Co. (1992) 168 Wis.2d 863, 485 N.W.2d 31, 40; Rick v. RLC Corp. (E.D.Mich.1981) 535 F.Supp. 39, 45-47; see also Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680, 684, 81 Cal.Rptr. 519.)
FNS presents a fairly typical example of the circumstances which give rise to liability under section 324A. The defendant there, IAPMO, was a private nonprofit corporation which was in the business of certifying that plumbing products meet the Uniform Plumbing Code (UPC). The UPC had been adopted by virtually every municipality in the country, and as the court explained, "[a]n unlisted pipe not bearing the UPC logo is unmarketable, as building inspectors will not sanction its use. Plumbing wholesalers will not sell, and plumbers will not buy, such unlisted pipe." (24 Cal.App.4th at pp. 1566-1567, 29 Cal.Rptr.2d 916.) The developer of an apartment complex sued IAPMO on the theory that IAPMO had acted negligently in certifying that plastic plumbing installed at the complex met the requirements of the UPC. In reversing a summary judgment entered in favor of IAPMO, the court found that "because IAPMO has undertaken to inspect pipe for conformity with uniform standards which it has promulgated and which have been adopted by public entities as part of the uniform building code, and has undertaken The Restatement was applied in a somewhat different context in Deines. In Deines, a product liability insurer had, as a condition of its policy, conducted safety inspections of farm equipment manufactured by its insured. In particular, the insurer inspected the insured's equipment for compliance with nationally recognized safety and engineering standards. Given these circumstances the court found the insurer could be held liable to a plaintiff injured by a defective hay baler under sections 324, subdivisions (b) and (c). The court found the insurer had undertaken to advise the manufacturer as to the design of the hay baler and as to warnings placed on the hay baler and further that, in reliance on the advice it received from the insurer, the manufacturer had declined to retain its own safety engineer. (Deines, supra, 752 F.Supp. at p. 995.)
However, the court in Deines found that liability under section 324A, subdivision (a), was not possible because the "increased risk" which triggers such liability "means some physical change to the environment or some other material alteration[;] ... [m]ere negligence in failing to discover a danger on the part of a defendant, even if proved, would not subject the defendant to liability under § 324A(a)." (Deines, supra, 752 F.Supp. at p. 995.)
More broadly, courts have refused to impose liability under section 324A where there was no showing the defendant undertook responsibility with respect to the specific product which caused damage or injury. (Evans v. Liberty Mutual Ins. Co. (3d Cir.1968) 398 F.2d 665, 666-667; Klein v. Council of Chemical Associations (E.D.Pa.1984) 587 F.Supp. 213, 224-225; Blessing v. United States (E.D.Pa.1978) 447 F.Supp. 1160, 1188-1191.) " '[T]he scope of a good samaritan's duty is measured by the scope of his or her undertaking.' [Citation.] 'The foundation of the good samaritan rule is that the defendant specifically has undertaken to perform the task that he or she is charged with having performed negligently.' [Citations.]" (Klein v. Council of Chemical Associations, supra, 587 F.Supp. at p. 224.) Thus in Klein v. Council of Chemical Associations, no liability was imposed on a nonprofit testing institution because plaintiffs had not identified what product caused their injury. "As a result, plaintiffs can allege no specific product which defendant CIIT tested about which it negligently failed to warn plaintiffs." (Ibid.)
Admittedly, however, the court in the multi-district litigation case, in reinstating the plaintiffs' case against Dow, rejected this limitation. (MDL-II, supra, 887 F.Supp. at p. 1460.) Without discussion of any of the cases which have applied section 324A, the court found that liability under the Restatement could be based on the foreseeability of harm alone. With due respect, we do not believe we can adopt such a far-reaching species of tort liability. Significantly, the limitation cases have imposed on "Good Samaritan" liability finds important and persuasive support in the California cases which have put analogous limitations on liability for negligent misrepresentations and products liability. (See Bily, supra, 3 Cal.4th at p. 411, 11 Cal.Rptr.2d 51, 834 P.2d 745; Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 605, 163 Cal.Rptr. 132, 607 P.2d 924.) In Bily the court rejected the theory that an auditor could be held liable for negligent misrepresentation to all foreseeable users of its auditing reports. Rather, the court held plaintiffs must not only be foreseeable users of information disseminated by an auditor, but the intended beneficiaries of the auditor's services in a specific and circumscribed transaction. (Bily, supra, 3 Cal.4th at p. 412, 11 Cal.Rptr.2d 51, 834 P.2d 745.) In imposing The court's views in Bily are important here because as the court noted, "[a]ccountants are not unique in their position as suppliers of information and evaluations for the use and benefit of others. Other professionals, including attorneys, architects, engineers, title insurers and abstractors, and others also perform that function. And, like auditors, these professionals may also face suits by third persons claiming reliance on information and opinions generated in a professional capacity. [p] In a series of decisions, our Courts of Appeal have endorsed liability for negligence or negligent misrepresentation in the dissemination of commercial information to persons who were 'intended beneficiaries' of the information." (Bily, supra, 3 Cal.4th at p. 410, 11 Cal.Rptr.2d 51, 834 P.2d 745.)
We note the district court's foreseeability theory was also rejected in Matter of New York State Silicone Breast (1995) 166 Misc.2d 299, 632 N.Y.S.2d 953, 955, affirmed (1996) 642 N.Y.S.2d 681, 682.)
Similar concerns about the otherwise unlimited nature of liability was expressed by the court in Sindell v. Abbott Laboratories when it rejected the notion that a manufacturer of a defective drug might be held jointly liable to customers of another manufacturer of the drug because the manufacturers allegedly acted in concert in testing and developing the drug. "What the complaint appears to charge is defendants' parallel or imitative conduct in that they relied upon each others' testing and promotion methods. But such conduct describes a common practice in industry: a producer avails himself of the experience and methods of others making the same or similar products. Application of the concept of concert of action to this situation would expand the doctrine far beyond its intended scope and would render virtually any manufacturer liable for the defective products of an entire industry, even if it could be demonstrated that the product which caused the injury was not made by the defendant." (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 605, 163 Cal.Rptr. 132, 607 P.2d 924.)
The rule we distill from these cases is that liability under section 324A requires, among other matters, a showing that the defendant undertook to protect an identifiable group from a particular risk of injury. (See Klein v. Council of Chemical Associations, supra, 587 F.Supp. at p. 224; Bily, supra, 3 Cal.4th at p. 412, 11 Cal.Rptr.2d 51, 834 P.2d 745.) On this record plaintiffs cannot make such a showing with respect to Dow or Corning.
Following their transfer of patents and technology to Dow Corning, Dow's and Corning's participation in manufacturing breast implants and their testing was limited to testing the toxicology of silicone fluids and silicone dust. Thus, as in Deines, no liability for increasing the risk to plaintiffs under section 324A, subdivision (a), may be imposed because following the technology transfer, Dow and Corning did not alter the physical composition of Dow Corning's breast implants. (Deines, supra, 752 F.Supp. at p. 995.)
Although plaintiffs have presented a thorough history of the silicone research conducted by Dow and its eventual application by Dow Corning in medical devices including breast implants, the record is undisputed Dow and Corning conducted no tests with respect to the safety of the breast implants which Dow Corning marketed. In the absence of such testing with respect to the actual instrumentalities which are alleged to have caused plaintiffs' injuries, there is no basis upon which a reasonable inference can be drawn that Dow or Corning in fact undertook to protect the eventual recipients of Dow Corning's products.
In this regard plaintiffs' heavy reliance on the original toxicology research published in 1948 by Rowe, Spencer and Bass and Dow's later work on silicone fluids and In particular we reject plaintiffs' unstated suggestion that an intention by researchers in 1948 or thereafter to protect anyone who might be exposed to silicone products would be sufficient to impose liability to the narrower class of breast implant recipients who came into being in 1964 when Dow Corning began marketing its product. Imposition of liability for such basic research is impermissible because researchers would have no practical means of ascertaining the scope of their liability or making rational decisions regarding their research undertakings. (See Bily, supra, 3 Cal.4th at p. 409, 11 Cal.Rptr.2d 51, 834 P.2d 745.)
The same fundamental principles prevent liability from being imposed on the basis of the toxicology research Dow did following the marketing of breast implants. Because Dow never conducted research with respect to breast implants themselves, but only provided information about the toxicological impact of their principal component, silicone, any inference of an undertaking to protect plaintiffs is defeated by the innumerable other design and manufacturing decisions, including appropriate warnings which Dow Corning was required to make before being able to market finished breast implants. In this regard Dow and Corning were in a markedly different position than the defendants in cases such as FNS and Deines. In those cases the defendants were asked to inspect not a component or raw material, but finished products. The fact finished products were inspected and certified as safe and free of defects both drastically narrowed the scope of potential plaintiffs and heightened the inference of notice to the defendants, reliance by plaintiffs and causation of the injuries.
Here in contrast, Dow's toxicology research could have been applied to a whole range of products and medical devices manufactured by Dow Corning and been subjected to any number of other considerations which might have altered or mitigated the impact of the information Dow provided. In short, unlike the activities of the defendants in FNS and Deines, Dow's research efforts with respect to raw materials do not give rise to any actionable undertaking because of the broader range of potential liability such basic research could engender and because of the substantially greater difficulty there would be in establishing a causal link between the information provided and plaintiffs' injury. (See Bily, supra, 3 Cal.4th at p. 409, 11 Cal.Rptr.2d 51, 834 P.2d 745.)
The 1975 tradename and trademark agreements and the 1992 confidentiality agreements under which Dow and Corning retained the right to assure themselves of the quality of the products marketed by Dow Corning are also unavailing here. Those contracts do not impose any duty upon Dow or Corning to perform tests but merely give the corporate parents the right to perform tests. Such a right to protect one's own interest does not amount to the undertaking which is the foundation of Good Samaritan liability.
B. Deceit
Plaintiffs also contend Dow is liable for deceit because of statements it disseminated with respect to the inert nature of silicone and the safety of breast implants. They rely upon the holding in Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 857-858, 266 Cal.Rptr. 106 (Khan ). In Khan the manufacturer of an artificial heart valve was alleged The Khan case is distinguishable in a number of important respects. First, the defendant speaker in Khan was the manufacturer of the product about which the statements were made. Reliance by patients and their doctors on such statements by a manufacturer is in no sense unwarranted. Here, as we have noted, Dow was not the manufacturer of the breast implants and its only statements about breast implants were made after Dow Corning stopped marketing implants.
Admittedly, plaintiffs may have indirectly relied upon toxicology reports made available to Dow Corning and through Dow Corning to the surgeons who placed the implants in plaintiffs breasts. (See Rest.2d Torts, § 533; Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 441, 79 Cal.Rptr. 369; Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 707, 60 Cal.Rptr. 398.). However, plaintiffs have not presented any evidence which suggests Dow misstated the results of its toxicology reports or withheld from Dow Corning any knowledge it had about the toxicological impact of silicones.
Thus, in the end, the only arguably actionable statements supporting plaintiffs' claims would be Dow's public statements about the general safety and inertness of silicone. Because, according to plaintiffs, these statements were not made by the manufacturer and were not made about the suitability of breast implants, they could not be reasonably relied upon by either patients or their doctors in assessing the risks of using Dow Corning's products. (See Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 48, 31 Cal.Rptr.2d 378.) As we noted in our discussion of section 324A, imposition of liability based on such generalized assurances about a component would create unacceptably broad liability without any direct connection between the statement and the injury. (Compare Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1097-1098, 23 Cal.Rptr.2d 101, 858 P.2d 568, rejecting "fraud on the market" securities liability.)
C. Discovery
Before the motions for summary judgment were heard, plaintiffs moved for a continuance on the grounds they needed to complete outstanding discovery. Relying on "the extensive discovery conducted both in California and nationwide over the last two years in conjunction with the breast implant litigation," the trial court denied plaintiffs' motion. We review the trial court's order for abuse of discretion. (See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 547-548, 30 Cal.Rptr.2d 706; Code Civ. Proc., § 437c, subd. (h).)
In order to obtain a continuance of a calendared motion for summary judgment on the grounds further discovery is needed, a party opposing the motion must demonstrate that "facts essential to justify opposition may exist." (Code Civ. Proc., § 437c, subd. (h).) Here, plaintiffs submitted a declaration in which they argued that they had outstanding discovery requests to Dow and Corning with respect to contracts and agreements to perform research on behalf of Dow Corning, the employment status of individuals who performed research at both Dow and Corning and documents relating to any research on silicone or silica undertaken by Dow and not provided to Dow Corning. Obviously, these outstanding discovery requests do not of themselves supply any evidence of Dow's or Corning's participation in testing or otherwise taking responsibility for the safety of Dow Corning's breast implants; more importantly the discovery requests do not themselves provide any facts from which one might reasonably infer that such evidence exists.
The minimal inference created by the outstanding discovery is itself undermined by the fact that at the time the motions for In sum in light of the extensive discovery which had been performed both in the MDL litigation and the discovery permitted in the coordinated proceeding, the trial court could have reasonably determined that the additional discovery would not produce any evidence that would alter the limited nature of Dow's or Corning's role in the development of breast implants disclosed by the discovery that was already available. Thus the trial court did not abuse its discretion in denying plaintiffs' motion to continue the summary judgment hearing.
Judgment affirmed.
NARES and HALLER, JJ., concur.