Judge: Colin Leis, Case: 21STCV01740, Date: 2023-09-26 Tentative Ruling

Case Number: 21STCV01740    Hearing Date: April 11, 2024    Dept: 74

Mamdouh Habib, et al. v. A.L. Wilson Chemical Company, et al.

Defendant A.L. Wilson Chemical Company’s Motion for Summary Adjudication

The court considered the moving papers, opposition, and reply.

BACKGROUND

            This action arises from a dispute over Decedent Mamdouh Habib’s exposure to allegedly carcinogenic chemicals.

             On December 20, 2023, Plaintiffs Loris Attia (individually and as successor-in-interest to Decedent), Sara Habib, Jennifer Habib, and Stephanie Habib (Plaintiffs) filed a second amended complaint (SAC) against Defendant A.L. Wilson Chemical Company (Defendant) and others.

            The SAC alleges the following causes of action: (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium.

            On December 21, 2023, Defendant filed this motion for summary adjudication. Defendant seeks an order adjudicating Plaintiffs’ fourth cause of action for fraudulent concealment and request for punitive damages.

EVIDENCE

            The court preserves the parties’ evidentiary objections.

LEGAL STANDARD 

            “¿[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.¿” (¿¿Code Civ. Proc., § 437c, subd. (c)¿¿.) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (¿¿Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850¿¿.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (¿¿Ibid.¿¿) Courts “¿liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.¿” (¿¿Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389¿¿.)

DISCUSSION

Fourth Cause of Action – Fraudulent Concealment

            To prevail on this cause of action, a plaintiff must prove, in part, that the defendant intentionally concealed or suppressed a material fact with intent to defraud the plaintiff. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.) Defendant argues the court should grant summary adjudication of this cause of action because Plaintiffs do not have, and cannot reasonably obtain, evidence that Defendant knowingly concealed from Decedent that one of Defendant’s products poses a risk of cancer. In support, Defendant offers Plaintiffs’ discovery responses as evidence. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580.) According to Defendant, the responses are factually devoid.

            For example, Special Interrogatory No. 17 to Plaintiffs Jennifer and Stephanie Habib and Special Interrogatory No. 90 to Plaintiff Loris Attia ask Plaintiffs to state all facts which support their claim for fraudulent concealment. (Sayre Decl., ¶¶ 3, 4; Ex. B; Ex. C.) Plaintiffs state that Defendant knew its products could cause kidney cancer because such information was generally known in chemical industries for decades. Even so, Defendant did not share this information with consumers through written warnings and material safety data sheets. (Sayre Decl., ¶¶ 11, 12; Ex. J, pp. 19, 34-37; Ex. K., pp. 31, 37-39.) The court finds Plaintiffs’ contention that Defendant knew about the cancer risk speculative, though. That is, Plaintiffs’ discovery responses do not cite any specific scientific study of which Defendant should have been aware.

            Moreover, Special Interrogatory No. 19 to Plaintiffs Jennifer and Stephanie Habib and Special Interrogatory No. 92 to Loris Attia ask Plaintiffs to identify documents that support their claim for fraudulent concealment. (Sayre Decl., ¶¶ 3,4; Ex. B; Ex. C.) Plaintiffs respond by citing documents produced in prior litigation, in addition to scientific studies and tests conducted on Defendant’s products. (Sayre Decl., ¶¶ 11, 12; Ex. J, pp.40-41; Ex. K, pp. 42-43.) But Plaintiffs do not specify which documents, studies, or tests would support their claim. Importantly, Plaintiffs do not identify tests or studies that concluded Defendant’s product is carcinogenic.

            To continue, Request for Production No. 35 to Plaintiffs Jennifer and Stephanie Habib and Request for Production No. 84 to Plaintiff Loris Attia ask Plaintiffs to produce all documents that support their claim for fraudulent concealment. (Sayre Decl., ¶¶ 5,6; Ex. D; Ex. E.) In response, Plaintiffs cite a host of documents they produced, including material safety data sheets. (Sayre Decl., ¶¶ 13, 14; Ex. L, pp. 45-46; Ex. M, pp. 50-51.) From 1999 to 2014, the material safety data sheets did not address the cancer risk of Defendant’s product Targo Dry. (Brust Decl., ¶ 4; Ex. A.) Moreover, this timeframe covers the period when Decedent was allegedly exposed to the product. (SAC, ¶ 22.) Considered in isolation, though, the material safety data sheets only indicate that Defendant failed to warn Plaintiff from 1999 to 2014. The sheets do not inform the court whether Defendant knew of the cancer risk and suppressed the information. Thus, Plaintiffs’ discovery responses do not demonstrate Defendant’s intent to conceal a material fact from Decedent. Defendant has satisfied its prima facie burden, meaning the burden shifts to Plaintiffs to create a triable issue of material fact.

            Plaintiffs in turn argue that given the state of research during the alleged concealment, Defendant was aware of the cancer risk. As a result, Defendant intentionally concealed the information from Decedent. In support, Plaintiffs offer the declaration of a physician, who relies on studies published before Decedent’s exposure. According to the physician, a chemical in Defendant’s product, trichloroethylene (TCE), causes kidney damage in rodents. (Brautbar Decl., ¶¶ 133, 135-139.) But in the paragraphs of the declaration to which Plaintiffs direct the court, the expert does not opine that TCE causes cancer in rodents or humans. (Brautbar Decl., ¶¶ 133, 135-139.) The declaration therefore does not establish that Defendant was or should have been aware of the cancer risk of its product.

            Consequently, Plaintiffs have not created a triable issue of material fact whether Defendant knew about and intentionally concealed a material fact from Decedent. The court grants Defendant’s motion for summary adjudication of this cause of action.

Punitive Damages

            Defendant argues the court should grant its motion for summary adjudication of this issue given Plaintiffs’ discovery responses. Under Civil Code section 3294, a plaintiff may recover punitive damages if it proves by clear and convincing evidence the defendant has been guilty of oppression, fraud, or malice. In this context, malice can mean despicable conduct that is carried on by the defendant with a conscious disregard of the safety of others. (Civ. Code, § 3294, subd. (c)(1).) In a motion for summary judgment, the initial burden is on the defendant to show the plaintiff cannot prove the defendant acted with malice, oppression, or fraud. (Fadeef v. State Farm General Insurance Co. (2020) 50 Cal.App.5th 94, 109.) Then the burden shifts to the plaintiff to establish evidence supporting punitive damages with the clear and convincing standard of proof. (Ibid.)

            In support, Defendant points to Special Interrogatory No. 24 to Plaintiffs Jennifer and Stephanie Habib and Special      Interrogatory No. 100 to Plaintiff Loris Attia, which ask Plaintiffs to provide facts in support of their request for punitive damages. (Sayre Decl., ¶¶ 3-4; Ex. B; Ex. C.) In response, Plaintiffs state that Defendant was aware that its product could cause kidney cancer     because of generally recognized scientific knowledge. (Sayre Decl., ¶¶ 11; Ex. J, pp. 47-48; Ex. K, pp. 55-56.) Even so, Defendant placed the product in the stream of commerce without adequate warnings and thereby endangered Decedent. (Sayre Decl., ¶¶ 11; Ex. J, pp. 47-48; Ex. K, pp. 55-56.) Moreover, Defendant’s CEO ratified this decision. (Sayre Decl., ¶¶ 11; Ex. J, p. 49; Ex. K, p. 56.)

            However, the court finds Plaintiffs’ contention that Defendant knew about the risk of kidney cancer speculative. That is, Plaintiffs’ responses do not cite any relevant scientific study of which Defendant should have been aware. Without knowing its products posed a risk of kidney cancer, Defendant could not have consciously disregarded Decedent’s safety. Nor could Defendant’s CEO have knowingly ratified the decision to sell the product without a necessary cancer           warning.

            Defendant goes on to cite further discovery responses from Plaintiff. Special Interrogatory Nos. 26-28 to Plaintiffs Jennifer and Stephanie Habib and Special Interrogatory Nos. 102-104 to Plaintiff Loris Attia ask Plaintiffs to identify documents that support their claim for punitive damages. (Sayre Decl., ¶¶ 3-4; Ex. B; Ex. C.) Requests for Production Nos. 37-39 to Plaintiffs Jennifer and Stephanie Habib and Requests for Production Nos. 87-89 to Plaintiff Loris Attia ask Plaintiffs to produce documents that support their claim for punitive damages. In response, Plaintiffs identity studies and tests conducted on Defendant’s products. Plaintiffs also cite and produce material safety data sheets. (Sayre Decl., ¶¶ 11, 12; Ex. J, pp. 52-55; Ex. K, pp. 60-63; Ex. L, pp. 49-52; Ex. M, pp. 55-59.)        

            Although Plaintiffs identify studies and tests conducted on Defendant’s products, Plaintiffs do not cite any specific studies and tests or clarify whether they would have alerted Defendant to the kidney cancer risk. And as noted above, the material safety data sheets alone do not indicate whether Defendant knew about the risk of cancer when the alleged concealment occurred. Consequently, the sheets do not show that Defendant acted with a conscious disregard for Decedent’s safety when it placed its product in the stream of commerce with inadequate warnings. Thus, Defendant has met its prima facie burden.

            Plaintiffs, for their part, maintain Defendant exhibited a conscious disregard for the safety of Decedent and the public at large. To that end, Plaintiffs again rely on the physician’s declaration. But the cited declaration paragraphs do not demonstrate the link between Defendant’s product and cancer. Nor do the cited declaration paragraphs suggest Defendant should have been aware of its product’s cancer risk during the relevant timeframe. Thus, Plaintiffs have not created a triable issue of material fact whether Defendant consciously disregarded Decedent’s safety. The court grants Defendant’s motion for summary adjudication for the issue of punitive damages.

CONCLUSION

                The court grants Defendant’s motion for summary adjudication of the fourth cause of action and the issue of punitive damages.

            Defendant shall give notice.