Judge: H. Jay Ford, III, Case: 22STCV22419, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV22419    Hearing Date: December 15, 2022    Dept: O

  Case Name:  Estate of Jaklin Rasekhnia, et al. v. Philips North America, LLC, et al.

SUBJECT:                DEMURRER TO COMPLAINT

MOVING PARTY:   Defendant Apguard Medical Inc.

RESP. PARTY:         Plaintiffs Estate of Jaklin Rasekhnia, et al.

TENTATIVE RULING

            Defendant Apguard Medical, Inc.’s Demurrer to Complaint is OVERRULED.  Defendant Apguard to answer in 20 days. 

I. Whether Apguard Medical Inc. is subject to products liability cannot be determined on this demurrer

            Defendant Apguard demurs to the 1^st and 2^nd causes of action for products liability on grounds that it is a service provider, not a retailer or distributor of the BiPAP machine that allegedly caused decedent’s death.  Defendant Apgaurd argues that, as a medical service provider, the 3^rd cause of action for negligence is a claim for medical negligence subject to the one-year statute of limitations under CCP §340.5. 

            According to the complaint, Apguard was a “home respiratory medical equipment provider and distributor, vendor, lessor and/or retailer of the Trilogy100 Ventilator at issue in this lawsuit.”  See Complaint, ¶¶2, 9.  Apguard’s “negligent programming, deprogramming, set-up, designing, and/or setting of the Subject Ventilator’s alarm system” proximately caused decedent’s death.  Id. at ¶15. 

Apguard argues it is “a health care company whose healthcare provider respiratory therapists delivered a Bi-Pap medical device after having been presented with a valid prescription written by Plaintiffs’ Decedent’s pulmonologist and whose healthcare provider respiratory therapists then programmed and installed the Bi-Pap medical device in accordance with the detailed prescription and valid medical order written by Plaintiffs’ Decedent’s pulmonologist…”   

There are no allegations in the complaint regarding respiratory therapists from Apguard or that the machine was provided pursuant to a valid prescription written by decedent’s pulmonologist.  Demurrer based on these unpled facts must be overruled.

            In addition, on reply, Apguard acknowledges that its transaction with decedent was a “hybrid” transaction, involving both provision of services and sale of a prescription product.  Apguard argues it is akin to a pharmacist, who the Supreme Court held to be immune from strict liability under Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 678-681 (“It seems clear to us that the pharmacist is engaged in a hybrid enterprise, combining the performance of services and the sale of prescription drugs.”) 

Absent relevant legislation, strict product liability in “hybrid” cases turns on a “dominant role” test, i.e. whether defendant’s dominant role in supplying the product should be charactered as the performance of a service or the sale of a product.  Id. at 677-681.  The “dominant” function of pharmacists is deemed to be the performance of a service and, therefore, pharmacists are immune from strict products liability for injuries caused by “defective” drugs they dispense. 

Id. 

            The Court cannot determine what the “dominant” function of Defendant Apguard’s function is based on the sparse facts presented in the complaint.  Moreover, as Apguard acknowledged on reply, the Supreme Court’s analysis in Murphy was based on several factors:  “(1) whether the services sought are professional in nature; (2) whether the provider is paid for its professional services and skill as opposed to merely supplying product to the consumer; (3) whether the provider is required to obtain a license indicating completion of requisite education and/or training; and (4) whether the provider must use care and skill in preparing the product and be aware of problems regarding the product in order to advise doctors and counsel patients on such problems.”  See Reply, 6:1-9. 

Even accepting Apguard’s characterization of Murphy’s analysis, the Court does not have the necessary facts before it on demurrer to engage in this analysis.  The complaint does not allege whether Apguard’s professional in nature, what exactly Apguard is paid for, whether Apguard is required to obtain a license indicating completion of requisite education nor training and whether Apguard must be aware of problems regarding the produce in order to advise doctors and counsel patients on such problems.  None of this information is supplied in judicially noticeable evidence either. 

As such, demurrer to the products liability causes of action for strict liability and negligence (failure to warn) based on Murphy is OVERRULED. 

II.  Apguard fails to establish that it is a health care provider and the 3^rd cause of action for negligence is a cause of action for medical negligence subject to the one-year limitations period under CCP §340.5

            “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.”  CCP §340.5.

Pursuant to CCP §340.5(1), a “health care provider” means “any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider.”

Pursuant to CCP §340.5(2), “professional negligence” means “a negligence act or omission to act by a health care provider in rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”

Apguard demurs to the 3^rd cause of action for negligence based on the 1-year statute of limitations under CCP §340.5.  However, Apguard fails to brief the issue of whether it or its respiratory therapists qualify as healthcare providers based on the allegations of the complaint and whether the negligence claim is based on rendition of “professional services” “within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”  Moreover, there is no mention of respiratory therapists in the complaint.  Demurrer based on CCP §340.5 to the 3^rd cause of action for negligence is OVERRULED.