Judge Glenda Sanders, Case 2018-01009712 2022-11-03 Tentative Ruling

Judge: Glenda Sanders, Case: 2018-01009712, Date: 2022-11-03 Tentative Ruling

Olympus’ Motion for Summary Judgment or Summary Adjudication

Defendant Olympus America Inc. (Olympus) seeks summary judgment in its favor on the Second Amended Complaint (SAC). In the alternative, Olympus seeks summary adjudication on the following issues: (1) Plaintiff’s negligence claim is barred by the statute of limitations; (2) Plaintiff’s negligence claim fails because Plaintiff cannot establish that Olympus breached a duty owed to Plaintiff; (3) Plaintiff’s negligence claim fails because Plaintiff cannot establish that Olympus caused or contributed to Plaintiff’s alleged injuries; and (4) Plaintiff was a “sophisticated user” of the products at issue.

Evidentiary Objections: Olympus’ objections (ROA 783) to paragraphs 12 and 13 of the ROA 735 (Redacted) and 748 (Unredacted) Metzger Declaration and Exhibits A-I are SUSTAINED.

Request for Judicial Notice: Olympus’ ROA 614, Request for Judicial Notice is GRANTED. Olympus’s ROA 727, Supp. Request for Judicial Notice is GRANTED.

Statute of Limitations and Relation Back: Olympus argues that Plaintiff’s claims against it are time-barred because they do not relate back to her Complaint. Olympus argues that at the time she filed her initial Complaint, Plaintiff was well aware of its identity, that it manufactured all the endoscopes used at her place of employment, and that she was cleaning one of the endoscopes that Olympus manufactured on July 11, 2016 when she suffered injury from inhalation of OPA while manually cleaning the endoscopes. As such, Olympus argues all the facts giving rise to Plaintiff’s sole claim against Olympus for general negligence were known to Plaintiff when she filed her initial Complaint and she cannot overcome the statute of limitations by identifying Olympus as a Doe defendant.

In Opposition, Plaintiff argues that although she was aware of its identity and her injury, she did not suspect Olympus of any wrongdoing at the time she filed her initial Complaint and that it was only through research and investigation during the pendency of this lawsuit that Plaintiff discovered wrongdoing by Olympus, “to wit, the defective design of its TJF-Q180V endoscope that was eventually recalled by the FDA this past year.” ROA 746, UNREDACTED Opp., p. 5:21-22.

Under CCP § 474, a plaintiff is permitted to use a Doe amendment “in good faith” to delay suing certain defendants until the plaintiff “has knowledge of sufficient facts to cause a reasonable person to believe liability is probable”. (Fuller v. Tucker (2000) 84 Cal.App.4^th 1163, 1172.) “A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. Ignorance of the facts is the critical issue .... The pivotal question in this regard is did plaintiff know facts? not did plaintiff know or believe that [he] had a cause of action based on those facts?” (Hazel v. Hewlett (1988) 201 Cal.App.3d 14581464-1465, citations and internal quotation marks omitted.)

But there is no duty to go in search of the facts plaintiff does not actually have at the time of filing the original complaint. (Fuller v. Tucker (2000) 84 Cal.App.4^th 1163, 1172.)

To successfully argue a Doe amendment is untimely, the defendant must show not only that plaintiff knew defendant’s identity but also knew the facts giving rise to a cause of action against him. (Fuller v. Tucker, supra, 84 Cal.App.4^th at 1173; Snoke v. Bolen (1991) 235 Cal. App. 3d 1427, 1432 [Doe amendment improper and no relation back where, at the time of filing the complaint plaintiff was aware of all facts bearing on defendant’s liability and she had failed to identify any facts or evidence unavailable to her at the time her complaint was filed].)

Here, it is undisputed that Plaintiff filed her initial Complaint on July 10, 2018 (ROA 747, UMF No. 1), that Olympus was added as Doe 4 on April 29, 2021 and the only cause of action alleged against it is general negligence. ROA 747, UMF No. 5; ROA 604, Ex. D, Doe Amendment. The SAC alleges Olympus as Doe 4 is a manufacturer, supplier, distributor, retailer, trademark owner, and other entity in the chain of distribution of presently unknown chemical products to which Plaintiff… was exposed, or machines which caused Plaintiff … to be exposed to toxic chemical products, and which Plaintiff alleges were substantial factors in causing Plaintiff’s Reactive Airway Disease.” ROA 201, SAC, ¶9.

In support of the 1^st COA for general negligence, Plaintiff alleges Olympus “provided servicing, maintenance, training, instruction, and supervision with respect to the machines and chemical products identified above, including but not limited to instructing Plaintiff with respect to the use of ultrasonic washers identified above”, “negligently and carelessly serviced, maintained, trained, instructed, and supervised the use of the foregoing machines and chemical products, including but not limited to instructing Plaintiff…to manually clean medical devices in the open air, thus exposing Plaintiff to toxic aerosols from said toxic chemical products”, and from Plaintiff’s “use of the Defendants’ machines and toxic chemical products” she was exposed to the toxic chemicals. ROA 201, SAC, ¶¶21-33.

The undisputed material facts show Plaintiff’s duties at Kaiser required her to regularly clean the endoscopes, that throughout the time she reprocessed endoscopes at Kaiser Anaheim, only Olympus endoscopes were used, that her injuries in July 2016 from exposure to OPA occurred while disinfecting an endoscope. ROA 747, UMF Nos. 7, 9, 10, 11, 12, 13; see also Plaintiff’s Additional Material Fact No. 12. Significantly, Plaintiff admits that her negligence claim against Olympus is “based on the same general facts she told Dr. Greenwood about on July 11, 2016 – namely, that Plaintiff’s reprocessing of an ERCP scope (which was sold by Olympus) allegedly exposed Plaintiff to harmful chemicals like OPA.” ROA 747, UMF No. 23. Plaintiff also admits that before and after the July 11, 2016 incident, she received training on Olympus endoscopes and received annual training from Olympus employees on how to reprocess its endoscopes and that Olympus’s reprocessing instructions were in the scope room. ROA 747, UMF Nos. 19-22. Moreover, Plaintiff knew the reason she was required to manually clean the endoscope was because there was a microbe bug that had killed people due to the “little elevator underneath” that allowed tissue to be stuck. As a result, Custom Ultrasonics would not be responsible for cleaning that type of endoscope. ROA 608, Gettas Decl., Ex. 1, Plaintiff’s deposition, volume 1, pp. 94:22-96:22, 97:21-98:21.

Moreover, Plaintiff does not effectively dispute any of the facts identified in Olympus’ Separate Statement on the statute of limitations issue. See ROA 725, Opp. SS, UMF Nos. 1- 23, pp. 2-11.

Despite the evidence showing Plaintiff was aware of all the facts giving rise to her negligence claim against Olympus, Plaintiff states in her declaration that she “was unaware of any wrongdoing on the part of Olympus” at the time she filed her case. ROA 736, Plaintiff’s Decl., ¶4. Plaintiff’s conclusory statement in her declaration fails to create any triable issue of material fact. As noted above, the critical question is whether Plaintiff knew the relevant facts, not whether she knew she had a claim based on those facts.

Plaintiff’s Opposition purports to identify the “new” facts of which she was purportedly unaware. Specifically, Plaintiff argues in her Opposition that she did not know of the alleged design defect in the endoscopes. ROA 746, UNREDACTED Opp., p. 5:21-22. However, as Olympus points out, there is no design defect cause of action alleged against Olympus in the SAC. ROA 747, UMF No. 5; ROA 604, Ex. D, Doe Amendment; ROA 201, SAC, ¶¶21-33.

The pleadings determine what issues are material in a summary judgment motion, and “the moving party need not address a missing element or … respond to assertions which are unintelligible or make out no recognizable legal claim.” (Stolz v. Wong Communications Ltd. Partnership (1994) 25 Cal.App.4th 1811, 1817.) A party cannot create a triable issue of material fact by addressing issues outside of the pleadings. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“papers filed in response to a motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings”]; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 [“summary judgment cannot be denied on a ground not raised by the pleadings.”]) As such, Plaintiff’s arguments and evidence regarding a design defect are not relevant or material to this Motion and may be disregarded.

Accordingly, the Court finds that Plaintiff improperly used CCP § 474 to circumvent the statute of limitations and her sole claim for negligence against Olympus is barred by the statute of limitations.

Even if the claim is not time-barred, Olympus has demonstrated Plaintiff cannot satisfy the elements of duty and causation for negligence.

As previously discussed, the scope of Olympus’ duty must be limited to those issues identified in Plaintiff’s operative pleading. (See 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18; Howard, 203 Cal.App.4th at 421.) What duty Olympus owes regarding the servicing, maintenance, training, instruction and supervision are issues that require expert opinions since that information is not within a lay person’s common knowledge. (See Howard, 203 Cal.App.4th at 429-430 (holding expert testimony was required for bathtub manufacturer’s applicable duty of care to hotel guest regarding slipperiness of tub); Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701-704 (Supreme Court holding that trial court did not err by requiring expert testimony as to the practices of builders in the area in order to establish the proper standard of care applicable to builder); see also Webster v. Claremont Yoga (2018) 26 Cal.App.5th

284, 289-290 (“Although many cases discussing standard of care involve medical malpractice, the rule requiring expert testimony to establish the standard of care has been applied in other industries as well”); Torres v. Taser Int'l, Inc. (9^th Cir. 2008) 277 F. App’x 684, 687 (applying California law; finding that “the appropriate standard of care for a weapon manufacturer is beyond the ‘common knowledge of [laypersons]’ and, thus, it was incumbent upon [plaintiff] to

present…expert testimony regarding this customary standard of care).

Olympus presents undisputed evidence, including expert evidence, to establish it satisfied its standard of care as to service, maintenance, training, instruction, and supervision. See ROA 725 Opp. SS, UMF Nos. 24-62; ROA 610, Van Wicklin Decl. Specifically, Olympus’ undisputed evidence shows Olympus’ reprocessing manual included a warning about the hazards of reprocessing chemicals, including the importance of adequate ventilation to prevent the buildup of toxic fumes, the need to cover the basin used for reprocessing with a tight-fitting lid to minimize the diffusion of vapors, and that no one from Olympus recommended using Custom Ultrasonics AER basis for manual high-level disinfection. ROA 747, UMF No. 37-44, 52.

Plaintiff argues Olympus provided conflicting instructions on the use of a basin with a tight-fitting lid but presents no admissible evidence regarding this issue (ROA 725, Opp SS, UMF Nos. 48 and 49) or any expert evidence. Plaintiff’s other attempts at creating a disputed fact are ineffective because she offers mere argument. ROA 725, Opp SS, UMF Nos. 50 and 53. Consequently, Plaintiff has not demonstrated that Olympus breached any duty owed to her.

Likewise, Olympus has demonstrated that it did not cause or contribute to Plaintiff’s injuries. Specifically, the undisputed evidence shows that Olympus sold endoscopes, including the one involved in the July 11, 2016 incident, and did not manufacture or sell any of the alleged toxic chemicals or AER that Kaiser used to perform reprocessing of the endoscopes. ROA 747, UMF Nos. 24-27. Olympus also provided adequate instructions and training but Plaintiff did not follow those instructions or training and received instructions and training from Kaiser Anaheim. ROA 747, UMF Nos. 36-56, 60-63.

Given these undisputed facts and evidence, Plaintiff cannot show that her injuries were caused by any servicing, maintenance, training, instruction or supervision by Olympus. (See Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1604 (2010) (“a defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings”); Ramirez v. Plough, Inc., 6 Cal.4th 539, 555-56 (1993) (holding that plaintiff’s failure to warn theory failed where evidence submitted on summary judgment established that plaintiff neither read nor sought interpretation of the warnings); Conte v. Wyeth, Inc. (2009) 168 Cal.App.4th 89, 111-13 (2009) (“There can be no proximate cause where, as in this case, the prescribing physician did not read or rely upon the allegedly inadequate warnings promulgated by a defendant about a product”).)

Based on the foregoing, the Court declines to consider the sophisticated user issue.

The Motion for Summary Judgment is GRANTED.

Olympus’ Motion to Seal Records

The Court has considered the unopposed Motion to seal the unredacted versions of the following documents: (1) Olympus confidential responses to FDA (OLYMONT_0100002052 to OLYMONT _0100002059); (2) Teleconference minutes (OLYMONT_0100008379 to OLYMONT_0100008383); and (3) May 9, 2014 letter (OLYMONT_0100000075 to OLYMONT_0100000078) (collectively “Confidential Documents”). ROA 701. The redacted versions of the Confidential Documents are attached as Exs. A, C and D to the ROA 735, Metzger Declaration and the unredacted versions are attached to ROA 738, Metzger Declaration in opposition to Olympus America Inc.’s (Olympus) Motion for Summary Judgment.

Having considered the unopposed request, and for good cause appearing therefrom, the Court finds an overriding interest in upholding the parties’ protective order and protecting the disclosure of Olympus’s confidential FDA application files and/or proprietary information. The overriding interest overcomes the right of public access to the record because the disclosure of Olympus’ confidential and proprietary information would cause significant injury to Olympus’ right to privacy in its business and proprietary information and the general public and supports the sealing of the Confidential Documents. Further, a substantial probability exists that the overriding interest will be prejudiced if the Confidential Settlement Documents are not sealed. Finally, in order for the Court to review the entirety of the Confidential Documents in connection with Plaintiff’s Opposition to Olympus’s Motion for Summary Judgment, no less restrictive means than sealing said agreement is available and the proposed sealing is narrowly tailored because the entirety of said documents are confidential and the parties met and conferred to narrow it down to these three documents. (Cal. R. Ct. 2.550(d).) IT IS THEREFORE ORDERED that the request to seal the Confidential Documents is GRANTED in its entirety. The Confidential Documents shall be maintained under seal, unless and until otherwise ordered by the Court.

Olympus is ordered to give notice.

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Alden Medical LLC’s Motion for Summary Judgment or Summary Adjudication

Defendant Alden Medical LLC (Alden) seeks summary judgment, or in the alternative, summary adjudication of issues. Alden also seeks summary adjudication on punitive damages.

Evidentiary Objections: Alden’s objections (ROA 759) to Exhibits A, C, D, E, to the ROA 739, Metzger Decl. is OVERRULED. The objections to Exhibits B, F, G, H and I to the ROA 739, Metzger Decl. are SUSTAINED.

Alden’s objections to ¶¶3, 4, 5, 6, 7, 8, 9 and 10 are OVERRULED.

The Court declines to rule on Alden’s objections to Plaintiff’s Additional Undisputed Material Facts Nos. 1-26 since separate statements are not evidence.

Summary Judgment. Alden argues it is entitled to summary judgment because Plaintiff “has failed to set forth any evidence supporting causation.” ROA 617, P&A, p. 16:17-18.

In a toxic tort case, causation is an essential element in all possible theories of liability. (Powell v. Standard Brands Point Company (1985) 166 Cal.App.3d 357, 366.) Summary judgment is proper if the plaintiff cannot establish causation between his or her injuries and a manufacturer's actions. (Garcia v. Joseph Vince (1978) 84 Cal.App.3d 868, 874; see also Visueta v. General Motors Corporation (1991) 234 Cal.App.3d 1609, 1616-1617 [affirming summary judgment for defendant-manufacturer where there was no causal relationship between the design defect and victim’s death.].)

To establish causation, a plaintiff must show exposure to the toxic materials claimed to have caused the injury, identify the product that caused the injury, and identify the manufacturer or supplier of that product. (Jones v. ConocoPhillips (2011) 198 Cal.App.4th at 1187, 1194-1195; Garcia, supra, 84 Cal.App.3d at 874.)

Alden argues that Plaintiff’s injuries were caused by the incident on July 11, 2016, but the SAC alleges she sustained injuries from 2013 through 2018 in the course of her work for Kaiser in Anaheim and that it was not until July 11, 2016 that she was aware she had sustained appreciable injury. ROA 201, SAC, ¶¶10, 14, 15; ROA 713, Opp. SS, No. 5. In her discovery responses, Plaintiff also states she was exposed to OPA and other toxic chemicals from 2013 to 2019. ROA 594, UMF No. 3; ROA 622, Zwarg Decl. (2 of 3), Ex. D, Plaintiff’s Amended Resp. to Special Interrogatories, Set One, No. 17.

Further, Plaintiff testified in her deposition that before and after July 11, 2016, she was exposed to fumes from OPA when reprocessing endoscopes, which would cause her to cough or she experienced tightness in her chest but got much worse after July 11, 2016. See ROA 739, Metzger Decl., Ex. E, Plaintiff’s Depo., Vol. 1, pp. 119:12-120:17, 124:17-125:1, 133:3-134:6, 205:3-207:1, 208:9-25, 209:4-11, 211:8-23, 214:9-218:12, 219:24-220:24, 263:16-21; ROA 713, Additional Material Facts (AMF) No. 3.

Thus, contrary to Alden’s claims, the evidence shows Plaintiff’s exposure to OPA on July 11, 2016 was not an isolated incident. Instead, Plaintiff was exposed to OPA from, at least 2013 through 2018.

Alden provides evidence that Plaintiff was exposed to OPA that it manufactured. Alden presents evidence it manufactured OP disinfectant labeled as Metricide OPA Plus High-Level Disinfectant exclusively for Metrex who then sold their product, Metricide OPA Plus High-Level Disinfectant, to Kaiser Permanente and that these agreements with Defendant Metrex Research LLC (Metrex) were entered into in 2007, 2010 and 2014. ROA 625, D’Amico Decl., ¶¶5-6. Alden further contends that Kaiser produced records showing CIDEX OPA Disinfectant, which Alden does not manufacture or sell, was used as Kaiser’s primary high-level disinfectant for its Program-Wide Scope Reprocessing procedures in its GI Department. ROA 594, Alden’s SS No. 19. However, the evidence cited by Alden to support this “material fact”, i.e. ROA 625, D’Amico Decl., ¶14 and ROA 624, Zwarg Decl., Ex. F, Cahn Depo., Ex. 5, pp. 11, 45-46, fails to support this assertion. Alden has not presented evidence that CIDEX OPA Disinfectant was Kaiser’s primary high-level OPA disinfectant or that any other brand of OPA was primarily used during between 2013 through 2018.

Further, at her deposition, Jean Cahn testified that at the staff meeting on July 6, 2016, she shared the safety data sheet for Metricide OPA Plus. ROA 624, Zwarg Decl., Ex. F, Cahn Depo., at pp. 50:7-51:11, 54:19-55:6. This was provided at a staff meeting in preparation for training the staff for manual reprocessing of endoscopes and a few days before the July 11, 2016 incident. ROA 624, Zwarg Decl., Ex. F, Cahn Depo., at pp. 59:20-61:19, 78:11-21, 79:8-81:10; ROA 594, Alden SS Nos. 9-11. Given that Kaiser presented the Metricide OPA Plus SDS during staff meetings in preparation for training on manual reprocessing, a reasonably inference can be made that this was the OPA brand used on July 11, 2016 when Plaintiff was exposed and suffered injury. As such, Alden has not met its initial burden of proof on causation.

Even if Alden had met its initial burden of proof, Plaintiff’s Declaration establishes triable issues of material fact on this issue. Plaintiff explains that throughout most of her employment at Kaiser, she used OPA products, and confirms that Metricide OPA Plus High Level Disinfectant was one of the products she used during her employment with Kaiser. ROA 730, Plaintiff’s Decl., ¶¶8-10; ROA 713, AMF Nos. 18-20. Accordingly, there are triable issues of material fact on causation.

The motion for summary judgment is accordingly DENIED.

Summary Adjudication. CRC Rule 3.1350(b) requires that “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

Aside from the issue of punitive damages, the Notice of Motion fails to comply with CRC Rule 3.1350(b) and generally states Aldon seeks “summary adjudication of issues”. Additionally, Alden’s ROA 594, Separate Statement (SS) fails to separately identify each cause of action, claim for damages or issue of duty and the supporting “undisputed material facts” claimed to be without dispute with respect to that particular cause of action, claim for damages or issue of duty, as required under Rule 3.1350(d) of the California Rules of Court. Nor does the Separate Statement separate the “undisputed material facts” and supporting evidence for summary judgment from the “undisputed material facts” and evidence in support of summary adjudication. Alden’s failure to file a conforming notice of motion and separate statement to support its motion for summary adjudication is by itself a sufficient ground for denial of summary adjudication. (Code Civ. Proc. § 437c(b)(1); Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.)

Additionally, since Alden’s motion for summary adjudication on punitive damages relies on all material facts alleged in the Separate Statement (ROA 594, p. 9:27 and SS Nos. 25-45, pp. 9-16), this claim also fails because there are triable issues of disputed facts as explained above.

The motion for summary adjudication is accordingly DENIED.

Alden is ordered to give notice.

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Cantel Medical Corporation and Medivators, Inc. Motion for Summary Judgment or Summary Adjudication

Defendants Cantel Medical Corporation and Medivators, Inc. (collectively, Cantel / Medivators) seek summary judgment on the Second Amended Complaint (SAC) in their favor, or in the alternative, summary adjudication as to each cause of action alleged in the SAC and punitive damages.

Evidentiary Objections: Cantel / Medivators object to the Metzger Declaration. ROA 767. The objections are SUSTAINED as to paragraphs 5-25 of the Metzger Declaration and Exhibits A-L.

Relevant Authority: Summary judgment or summary adjudication is proper when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) A moving defendant is entitled to summary judgment if it establishes either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc. § 437(c)(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) To show that a claim cannot be established, moving defendant must present affirmative evidence negating, as a matter of law, an essential element of plaintiff’s claim (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334; Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849 fn. 16), or show the absence of evidence to support an essential element of plaintiff’s claim. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 854 [absence of evidence basis requires showing plaintiff “does not possess and cannot reasonably obtain, needed evidence”].)

If the moving defendant meets its initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifts to plaintiff to produce evidence showing a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850.) There is no obligation by plaintiff to establish anything by affidavit unless and until the moving defendant by affidavit, has established every element necessary to obtain summary judgment. (Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454 468.)

The moving party also bears the burden of persuasion. (Evid. Code § 500; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850.)

The pleadings determine what issues are material in a summary judgment motion. Therefore, the moving party’s evidence must be directed to the claims or defenses raised in the pleadings. (Keniston v. American Nat'l Ins. Co. (1973) 31 Cal.App.3d 803, 812.) The moving party must show that the undisputed facts, when applied to the issues framed by the pleadings, entitle the moving party to judgment. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) However, “the moving party need not address a missing element or … respond to assertions which are unintelligible or make out no recognizable legal claim.” (Stolz v. Wong Communications Ltd. Partnership (1994) 25 Cal.App.4th 1811, 1817.)

The Merits: Cantel / Medivators allege that there is no evidence that Plaintiff was exposed to any of their products that caused her injury. Cantel / Medivators argue that Plaintiff admitted her injuries arise from one incident on July 11, 2016 when she was exposed to ortho-phthalaldehyde (OPA) while cleaning ERCP scopes. Cantel / Medivators argue that there is no evidence that its products were in use at Kaiser Anaheim during that term. Nor can Plaintiff demonstrate that any of its other products caused this exposure since none contain OPA.

In the SAC, Plaintiff alleges Cantel / Medivators manufactured or supplied the following products: Rapicide PA 30°C High-Level Disinfectant, Rapicide PA Test Strips, and Intercept Detergent. ROA 765, UMF No. 8; ROA 201, Second Amended Complaint (SAC), ¶9. The evidence shows these products were not introduced to Kaiser until February and March 2018 (ROA 765, UMF Nos. 9, 10, 12, 13, 15), which was only a few months before Plaintiff filed this Complaint. Importantly, Plaintiff also admits that she did not use these products prior to February and March 2018. ROA 561, NOL, Ex. D, [Plaintiff’s Supp. Resp. to RFA #2], Nos. 35, 36. Moreover, Cantel / Medivators contend that none of their products contain OPA. Plaintiff confirms that OPA is not contained in the Cantel / Medivators’ products. ROA 765, UMF Nos. 14, 16, ; ROA 561, NOL, Ex. D, [Plaintiff’s Supp. Resp. to RFA #2], Nos. 39, 40, 41, 42, 43, 44.

Cantel / Medivators also presented evidence from Plaintiff’s treating physicians, Drs. Greenwood and Ju, who identified her injuries as caused by her exposure to OPA. ROA 765, UMF Nos. 6 and 7. Neither doctor has identified any other causes of Plaintiff’s injuries. ROA 765, UMF Nos. 6, 7, and 17. Plaintiff did not complain of exposure to Cantel / Medivators’ products to Dr. Greenwood or her supervisors. ROA 765, UMF Nos. 18 and 19.

However, Plaintiff argues she never alleged that Cantel / Medivators’ products contained OPA. Instead, Plaintiff contends three ingredients in Cantel / Medivators’ products, i.e. hydrogen peroxide, acetic acid and peroxyacetic acid, are toxic and cause or contributed to the injuries to her respiratory system. Plaintiff argues that Cantel / Medivators has not successfully negated her allegations since Cantel / Medivators have not shown that these chemicals could not cause or contribute to Plaintiff’s injuries.

To properly plead the element of causation in a toxic tort case such as this one, “[a] plaintiff must ‘allege that [s]he was exposed to each of the toxic materials claimed to have caused a specific illness’; ‘identify each product that allegedly caused the injury’; allege ‘the toxins entered h[er] body’ ‘as a result of the exposure’; allege that ‘[s]he suffers from a specific illness, and that each toxin that entered his body was a substantial factor in bringing about, prolonging, or aggravating that illness’; and, finally, allege that ‘each toxin [s]he absorbed was manufactured or supplied by a named defendant.’ (Bockrath [v. Aldrich Chemical Company (1999)] 21 Cal.4th [72] at p. 80....) As the [California Supreme Court in Bockrath] emphasized, in keeping with the rule that allegations of fact should be made in ‘ordinary and concise language’ ..., ‘plaintiffs may, and should, allege the foregoing facts succinctly, and may do so in a conclusory fashion if their knowledge of the precise cause of injury is limited.’ (Bockrath, at p. 80 ....)” (Jones v. ConocoPhillips (2011) 198 Cal.App.4th at 1187, 1194-1195.)

Further, in toxic tort cases, causation is interpreted broadly as follows:

We explained: “[T]he plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Ibid.) In cases like the one before us, presenting complicated and possibly esoteric medical causation issues, the standard of proof ordinarily required is “ 'a reasonable medical probability based upon competent expert testimony that the defendant's conduct contributed to [the] plaintiff's injury.' ” (Id. at p. 976, fn. 11; cf. id. at p. 977 [setting forth the standard of proof for asbestos-related cancer claims].)

“The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Rutherford, supra, 16 Cal.4th at p. 978.) Thus, “a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor” (id. at p. 969), but a very minor force that does cause harm is a substantial factor (ibid.). This rule honors the principle of comparative fault. (Ibid.)

(Bockrath, supra, 21 Cal. 4th at 79.)

The SAC expressly alleges chemicals other than OPA, such as peracetic acid, hydrogen peroxide and acetic acid, are toxic to the respiratory system and caused her injuries. ROA 201, SAC, ¶¶11-13. It is undisputed that these chemicals are contained in Rapicide PA Part A though there is no admissible evidence that Cantel / Medivators’ other products contain these chemicals. ROA 561, Ex. G, Premsrirath Depo., pp. 155:11- 157:6, 158:6-19. Cantel / Medivators’ evidence does not negate these allegations in the SAC.

As discussed, Cantel / Medivators present evidence regarding the lack of OPA in their products, but do not present evidence that their products did not contain any of the other toxic chemicals identified in the SAC, or that if they do contain such chemicals, the amount is insufficient to cause injuries or exacerbate injuries to the respiratory system. None of the evidence presented by Cantel / Medivators disputes that these three chemicals, which are found in their products, are not toxic to the respiratory system, or cannot cause or exacerbate respiratory injuries.

Although Dr. Greenwood and Dr. Ju did not attribute Plaintiff’s RADS to any other chemical aside from OPA (ROA 561, Ex. E, Greenwood Depo., p. 138:17-140:17), Dr. Greenwood is not a pulmonary specialist and referred her to Dr. Ju, a Board-certified physician in pulmonary and critical care medicine. ROA 561, Ex. F, Ju Depo., pp. 19:20-24, 20:4-9. Dr. Greenwood had also never heard of Rapicide Part A or Part B, Rapicide Test Strips or Intercept Detergent, so it can be inferred that he never considered whether exposure to these products caused or contributed to Plaintiff’s injuries. ROA 561, Ex. E, Greenwood Depo., p. 135:16-136:14. Dr. Ju denies coming up with Plaintiff’s diagnosis for RADS and chemical bronchitis but agreed with it and that it was “more probable that not” that it was caused by exposure to OPA in July 2016. ROA 561, Ex. F, Ju Depo., pp. 110:1-24, 112:3-15. But importantly, neither physician opined that to a reasonable degree of medical certainty Cantel / Medivators’ products, or any chemicals contained in their products, did not cause or contribute to Plaintiff’s injuries.

Cantel / Medivators argue that Plaintiff’s injuries were caused by the incident on July 11, 2016, but the SAC alleges she sustained injuries from 2013 through 2018 in the course of her work for Kaiser in Anaheim and that it was not until July 11, 2016 that she was aware she had sustained appreciable injury. ROA 201, SAC, ¶¶10, 14, 15. Plaintiff testified in her deposition that she continued to have tightness in her chest even after the new disinfectant [Rapicide], Part A and B were used. See ROA 732, Ex. E, Plaintiff’s Depo., Vol. 1 in Opposition to Metrex’s MSJ, pp. 205:3-207:1, 208:9-25, 209:4-11, 211:8-23, 263:16-21. Further, Plaintiff contends she was advised she would continue to have issues with her respiratory system for the rest of her life, and that because she was around “these chemicals for so many years, that it takes time for all that to come out of [her] body.” ROA 732, Ex. E, Plaintiff’s Depo., p. 214:9-218:12, 219:24-220:24.

Thus, Cantel / Medivators failed to address whether the chemicals contained in Rapicide PA, specifically, hydrogen peroxide, acetic acid and peroxyacetic acid, caused or exacerbated the injuries to her respiratory system. The failure to address this issue is fatal to Cantel / Medivators’ motion.

“The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.” (Andalon v. Superior Court, supra, 162 Cal.App.3d at pp. 604–605, 208 Cal.Rptr. 899.) Materiality depends on the issues in the case, and what matters are at issue is determined by the pleadings, the rules of pleadings, and the substantive law. (Id. at p. 605, fn. 3, 208 Cal.Rptr. 899.) “The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action.” (FPI Development, Inc. v. Nakashima, supra, 231 Cal.App.3d at p. 381, 282 Cal.Rptr. 508.) The distinction between a material fact and its supporting evidence lies in the difference between an ultimate fact, an element of a cause of action, and an evidentiary fact which supports the existence of the element.

(Teselle v. McLoughlin (2009) 173 Cal. App. 4th 156, 172.)

Accordingly, the Motion for Summary Judgment is DENIED.

Summary Adjudication on the 1^st, 2^nd, 3^rd and 4^th COAs. For the same reasons as set forth above, summary adjudication as to the 1^st COA for general negligence, the 2^nd COA for products negligence, the 3^rd COA for strict liability (warning defect) and the 4^th COA for strict liability (design defect) is DENIED. Cantel / Medivators contends that summary adjudication is proper because Plaintiff cannot establish causation, but as discussed, Cantel / Medivators have not met their initial burden on causation.

Summary Adjudication on the 5^th COA for Fraudulent Concealment. The elements of a cause of action for fraud based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Jones, supra, 198 Cal.App.4th at p. 1198.)

Cantel / Medivators argue there is no evidence that it suppressed facts from Plaintiff and that it did not owe her any duty since she was not using its products on July 11, 2016. Cantel / Medivators also argue that Plaintiff has not provided the names of any individuals who made the allegedly fraudulent representations, or any other evidence of fraud. ROA 560, P&A, p. 16.

However, Cantel / Medivators have not actually presented evidence showing that Plaintiff lacks evidence of fraud or cannot obtain evidence of fraud. Cantel / Medivators do not present any evidence that it propounded discovery to Plaintiff for specific facts and evidence to support her fraudulent concealment claim against Cantel / Medivators. Cantel / Medivators rely on the same facts for this cause of action as all her other claims, which really focus more on exposure and causation. See ROA 562, SS, Issue 5, pp. 46-54. As discussed, Plaintiff’s exposure to toxic chemicals is not limited to the July 11, 2016 incident and she testified in her deposition that she continued to have tightness after being exposed to Rapicide PA. Ex. E, Plaintiff’s Depo., pp. 205:3-207:1, 208:9-25, 209:4-11, 211:8-23, 263:16-21. Therefore, there is evidence that Cantel / Medivators did owe Plaintiff a duty and there is insufficient evidence to show Plaintiff cannot support her fraudulent concealment claim against Cantel / Medivators.

Summary adjudication on the 5^th COA for fraudulent concealment is DENIED.

Summary Adjudication on the 6^th COA for Breach of Implied Warranty. Cantel / Medivators argue that Plaintiff’s cause of action for breach of implied warranty fails as a matter of law because there is no buyer / seller relationship between them and she is not in privity with the buyer.

Vertical privity is a prerequisite for recovery on a theory of breach of the implied warranty of fitness, unless an exception applies. (Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4^th 116, 138 [recognizing exception in U.S. Roofing, Inc. v Credit Alliance Corp. (1991) 228 Cal.App.3d 1431 for direct dealings between the parties]; All West Electronics, Inc. v. M-B-W, Inc. (1998) 64 Cal.App.4^th 717 [declining to extend U.S. Roofing where the parties did not engage in negotiations regarding the sale of the defective product].)

Plaintiff’s SAC expressly alleges her employer purchased Cantel / Medivators’ products, and Cantel / Medivators breached the implied warranties that they were reasonably fit for their intended purposes and of merchantable quality. ROA 201, Complaint, ¶¶105-108. Moreover, Plaintiff does not dispute that summary adjudication is warranted or argue any exception applies. Summary Adjudication is GRANTED on the 6^th COA.

Punitive Damages. Since summary adjudication was denied on the fraud claim, and Cantel / Medivators do not present evidence to support their arguments that Plaintiff cannot prove and cannot obtain proof to support punitive damages (see ROA 562, SS, Issue 7, pp. 63-70 [repeating the same 17 material facts]), summary adjudication on punitive damages is DENIED.

Cantel / Medivators are ordered to give notice.

__________________

Metrex’s Motion for Summary Judgment or Summary Adjudication

Defendant Metrex Research, LLC (Metrex) seeks summary judgment, or in the alternative, summary adjudication of issues.

Summary Judgment.

Metrex argues it is entitled to summary judgment because Plaintiff cannot establish causation, and specifically, product identification and exposure. ROA 556, P&A, p. 10:13-20.

Metrex argues that Plaintiff’s injuries were caused by the incident on July 11, 2016 (ROA 545, SS Nos. 3 and 18), but the SAC alleges she sustained injuries from 2013 through 2018 in the course of her work for Kaiser in Anaheim and that it was not until July 11, 2016 that she was aware she had sustained appreciable injury. ROA 201, SAC, ¶¶10, 14, 15. In her discovery responses, Plaintiff also states she was exposed to OPA and other toxic chemicals from 2013 to 2019. ROA 545, SS, UMF No. 16. Further, Plaintiff testified in her deposition that before and after July 11, 2016, she was exposed to fumes from OPA when reprocessing endoscopes, which would cause her to cough or she experienced tightness in her chest but got much worse after July 11, 2016. See ROA 732, Metzger Decl., Ex. E, Plaintiff’s Depo., Vol. 1, pp. 119:12-120:17, 124:17-125:1, 133:3-134:6, 205:3-207:1, 208:9-25, 209:4-11, 211:8-23, 214:9-218:12, 219:24-220:24, 263:16-21. Thus, contrary to Metrex’s claims, there is evidence that shows Plaintiff’s exposure to OPA on July 11, 2016 was not an isolated incident. Instead, there is evidence to support Plaintiff’s was exposed to OPA from, at least 2013 through 2018.

In support of its claim that Plaintiff cannot establish product identification and exposure, Metrex contends that Kaiser produced records showing CIDEX OPA Disinfectant, which Metrex does not manufacture or sell, was used as Kaiser’s primary high-level disinfectant for its Program-Wide Scope Reprocessing procedures in its GI Department. ROA 545, SS No. 27. However, the evidence cited by Metrex to support this “material fact”, ROA 551, Kim Decl., Ex. D, Cahn Depo., Ex. 5, fails to support this assertion. Metrex fails to provide a pin cite to Exhibit 5 and the date on that exhibit is 2001, and revised December 2011. Metrex has not presented evidence that CIDEX OPA Disinfectant was Kaiser’s primary high-level OPA disinfectant or that any other brand of OPA was primarily used during between 2013 through 2018.

Metrex also presents evidence that Plaintiff did not know which brand of OPA was used on July 11, 2016. ROA 545, SS No. 19. However, at her deposition, Jean Cahn testified at the staff meeting on July 6, 2016, she shared the safety data sheet for Metricide OPA Plus. ROA 551, Kim Decl., Ex. D, Cahn Depo., at pp. 50:7-51:11, 54:19-55:6; ROA 545, SS Nos. 11-12. This was provided at a staff meeting in preparation for training the staff for manual reprocessing of endoscopes and a few days before the July 11, 2016 incident. ROA 551, Kim Decl., Ex. D, Cahn Depo., at pp. 59:20-61:19, 78:11-21, 79:8-81:10. Given that Kaiser presented the Metricide OPA Plus SDS during staff meetings in preparation for training on manual reprocessing, a reasonable inference can be made that this was the OPA brand used on July 11, 2016 when Plaintiff was exposed and suffered injury. Given the conflicting evidence, Metrex has not met its initial burden of proof on causation.

Even if Mextrex had met its initial burden of proof, Plaintiff’s Declaration establishes triable issues of material fact on this issue. Plaintiff explains that throughout most of her employment at Kaiser, she used OPA products, and confirms that Metricide OPA Plus High Level Disinfectant was one of the products she used during her employment with Kaiser. ROA 730, Plaintiff’s Decl., ¶¶8-10; ROA 721, AMF Nos. 15-17. Plaintiff also presents evidence that shows Metricide OPA Plus disinfectant at Kaiser in 2018. ROA 732, Metzger Decl., Ex. B. Accordingly, there are triable issues of material fact on causation.

The motion for summary judgment is accordingly DENIED.

Summary Adjudication.

CRC Rule 3.1350(b) requires that “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

The Notice of Motion fails to comply with CRC Rule 3.1350(b) and generally states Metrex seeks “summary adjudication of issues”. Additionally, since no issues were identified in Metrex’s Notice of Motion, the ROA 545, Separate Statement failed to repeat “verbatim” each cause of action, claim for damages or issue of duty and the supporting “undisputed material facts” claimed to be without dispute with respect to that particular cause of action, claim for damages or issue of duty, as required under Rule 3.1350(d) of the California Rules of Court. Nor does the Separate Statement separate the “undisputed material facts” and supporting evidence for summary judgment from the “undisputed material facts” and evidence in support of summary adjudication. Metrex’s failure to file a conforming notice of motion and separate statement to support its motion for summary adjudication is by itself a sufficient ground for denial of summary adjudication. (Code Civ. Proc. § 437c(b)(1); Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.)

The motion for summary adjudication is accordingly DENIED.

Metrex is ordered to give notice.

Owens’ Joinder

Defendant Owens & Minor (Owens) joins in Metrex’s MSJ, or alternatively, MSA, and seeks summary judgment, or in the alternative, summary adjudication of issues.

Objections: Plaintiff’s objections (ROA 729) are OVERRULED.

The Merits: Owens incorporates by reference all of Metrex’s statement of undisputed facts and evidence. As such, Owens’ Motion fails for the same reasons.

Additionally, Owens admits it shipped certain limited products manufactured by Metrex to Kaiser (ROA 717, UMF No. 75) but Owens does not specifically identify which Metrex products were shipped to Kaiser.

The Joinder and Motion is DENIED in its entirety.

Owens is ordered to give notice.