Opinion
A100168.
10-24-2003
JANE CHAMBERLIN, Plaintiff and Appellant, v. NOVOCOL PHARMACEUTICAL OF CANADA, et al., Defendants and Respondents.
Plaintiff Jane Chamberlin appeals from a judgment dismissing her complaint against the respondents Novocol Pharmaceutical of Canada, Inc. and Septodont, Inc. Chamberlin contends the trial court erred in granting respondents motion for summary judgment. We agree. We reverse the judgment and remand for further proceedings.
FACTS
Chamberlins lawsuit sought damages for injuries she allegedly incurred during a procedure performed by her dentist, Dr. John Petrini, on April 27, 1998. According to Chamberlin, a contaminant present in the lidocaine ampoules used by Dr. Petrini caused her to develop paresthesia/dysesthesia. She further alleged that the only lidocaine in Dr. Petrinis office on April 27th, was that purchased from a wholesale supplier, Darby Dental Supply Company (Darby), and that Darby got the lidocaine it had supplied from respondent Septodont. Septodont, it was alleged, distributed lidocaine manufactured by respondent Novocol.
Respondents moved for summary judgment on the sole ground that Chamberlin could not identify them as the manufacturer and distributor of the lidocaine. They relied upon excerpts of deposition testimony of Dr. Petrini and his office manager, Rachel Novara, and the declarations of Eric Penrose and Anthony Montemurro, officers of respondents. Respondents argued that on the day of Chamberlins injection, Dr. Petrinis office inventory contained at least two brands of lidocaine, one type that was packaged in a can and one type that was packaged in a blister pack (which was described by Dr. Petrini as a plastic package in peel-back mode); that Novocols lidocaine was only packaged in a blister pack; and that because neither Dr. Petrini nor his office staff knew which of the two brands of lidocaine he had used on Chamberlin, she would not be able to meet her burden of proving respondents were responsible for her injuries. In opposition, Chamberlin argued that the evidence relied upon did not establish respondents were entitled to judgment as a matter of law. Additionally, she submitted declarations of Novara and Dr. Petrini, and excerpts of deposition testimony of Novara and John Quattorcchi, an officer of Darby, to support her contention that the only lidocaine in Dr. Petrinis office on the day of her injection was manufactured by Novocol and supplied by Septodont.
The superior court granted respondents motion for summary judgment, concluding that "there is no triable issue of material fact" regarding the manufacturer or distributor of the lidocaine used on Chamberlin. The court stated, in relevant part: "Neither Dr. Petrini nor any member of his staff knows the identity of the manufacturer or supplier of the lidocaine used on [Chamberlin] during her dental procedure on April 27, 1998. . . . Dr. Petrini described one brand of lidocaine that was in his office on the date of [Chamberlins] procedure that was packaged `in a can that may have been used on [her] — this could not have been lidocaine manufactured and distributed by [respondents]." The trial court entered judgment in favor of respondents. Chamberlin filed a timely notice of appeal.
DISCUSSION
Because respondents " `obtained summary judgment in their favor, "we review the record de novo to determine whether they have conclusively negated a necessary element of [Chamberlins] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial." ([Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666,] 673-674.) [Citation.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "[W]e must determine whether [respondents] in the present case have shown, through the evidence adduced in this case, . . . that [Chamberlin] . . . has not established, and cannot reasonably expect to establish, a prima facie case of causation, a showing that would forecast the inevitability of a nonsuit in [respondents] favor." (Id. at p. 768.) "In performing our de novo review, we must view the evidence in a light favorable to [Chamberlin] as the losing party . . ., liberally construing her evidentiary submission while strictly scrutinizing [respondents] own showing, and resolving any evidentiary doubts or ambiguities in [Chamberlins] favor. [Citations.]" (Id. at pp. 768-769; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)
We conclude the trial court erred in granting summary judgment dismissing Chamberlins complaint. The deposition testimony of Dr. Petrini and Rachel Novara, which we have set forth in the margin of this opinion, does not show that Chamberlin cannot establish an essential element of her claims, namely, the identities of the manufacturer and supplier of the lidocaine used in her injection. Dr. Petrini did not admit that on April 27, 1998, the date of Chamberlins injection, there were "at least two different brands of lidocaine in his office," as argued by respondents. Nor did he testify the office inventory contained lidocaine that was packaged in a can that could not have been manufactured or supplied by respondents, as stated by the trial court. The questions and responses dealt with the packaging of the lidocaine in the office, not the "brand," and there was no reference in the questions or responses of either Dr. Petrini or Novara to the specific date of Chamberlins injection. The nature of the deposition testimony did not rise to the level of such evidence that would prove Chamberlins claims had no merit and could not be established, or that would negate or disprove Chamberlins claims as a matter of law.
The relevant part of Dr. Petrinis deposition testimony is as follows:
Further, respondents have not shown that Chamberlin " `does not possess, and cannot reasonably obtain needed evidence " on the issues of the identities of the manufacturer and supplier of the contaminated lidocaine. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10, quoting from Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854.) The evidence submitted by Chamberlin in opposing the motion, including the declarations of Novara and excerpts of deposition testimony of John Quattorcchi, an officer of Darby, which show a chain of distribution of lidocaine from Novocol to Septodont to Darby to Dr. Petrinis office, is sufficient to raise a triable issue of fact as to whether Novocal lidocaine was used in Chamberlins procedure.
We therefore conclude the trial court erred in resolving Chamberlins claims as a matter of law. Our determination should not be read as expressing an opinion about the ultimate merits of the matter. We merely hold that Chamberlin is entitled to attempt to prove at trial that the lidocaine in question was manufactured and supplied by respondents. (See Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83-84 [grant of summary judgment reversed where discovery responses that were not aimed at moving party did not support reasonable inference that plaintiffs could not produce further evidence to support an element crucial to their claims].)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings. Plaintiff is awarded costs on this appeal.
We concur: McGuiness, P. J. Pollak, J.
"Q. Do you recall if you saw the package in which the Lidocaine came that you used on Mrs. Chamberlin in April of 1998?
A. No.
Q. Doctor, Im going to hold up for you and identify for the record a red can which is identified as "Lidocaine HCI 2% and Epinephrine 1:100,000 injection. . . . Do you see that?
A. Yes.
Q. There. Let me hand this to you, ask you if you have ever seen such a can before?
A. I cannot say that Ive seen a can with all the information including the manufacturer. What I see and what gets my attention is `Lidocaine [H]CL 2% Epinephrine 1:100, 000.
Q. Putting aside whatever print may have been on such a can youve seen in the past, do you recognize this as the type of can that may have been present in your office as early as April of 1998?
A. The anesthetics arrive in a can like this, round, usually contain the same number of cartridges, but I cannot say it was specifically this particular can as youve identified it that was used at the time.
Q. In other words, Doctor, is it your understanding that whoever is manufacturing or distributing the Lidocaine product that you were using in your office, it would likely come in the same type of can?
A. It comes in two ways. It comes in a can like this, and it comes generally in a paper with plastic peel-back mode."
The relevant part of Rachel Novaras deposition testimony is as follows :
"Q. . . . On or about October 97 when you made a purchase of lidocaine from Darby Dental
"A. Yes.
"Q. — when you placed that order, did you request a specific manufacturer, or did you simply request 20 of lidocaine?
A. No, no. You do not request — I did not — I think you should know that I did not do the ordering back in 1997.
Q. All right.
A. So I really cant answer that honestly. I dont know if they did request a certain manufacturer, but I was not doing the ordering back then."