Opinion
G052489
06-27-2017
CARLOS MALDONADO, Plaintiff and Appellant, v. MEDIVATORS, INC., Defendant and Respondent.
Steven B. Stevens; Gordon, Edelstein, Krepack, Grant, Felton & Goldstein and Roger L. Gordon for Plaintiff and Appellant. WFBM, Lisa M. Rice, Ani Adjemian, and John Kaniewski for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00682880) OPINION Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Reversed and remanded. Steven B. Stevens; Gordon, Edelstein, Krepack, Grant, Felton & Goldstein and Roger L. Gordon for Plaintiff and Appellant. WFBM, Lisa M. Rice, Ani Adjemian, and John Kaniewski for Defendant and Respondent.
In his lawsuit, Carlos Maldonado alleged he sustained a disabling lung disease, industrial asthma, as a result of occupational exposure to toxicologically significant levels of the chemical glutaraldehyde, used to disinfect medical equipment during his employment. He asserted Medivators Inc., the manufacturer of the disinfectant, was liable because it manufactured a dangerous toxic substance containing exceedingly high concentrations of glutaraldehyde without giving adequate warnings, especially after it formulated, manufactured, and sold an alternative product not containing glutaraldehyde. The trial court granted Medivators's summary judgment motion on the grounds the lawsuit was untimely. On appeal, Maldonado challenges the sufficiency of the evidence presented to support the summary judgment ruling. We conclude there exists a triable issue of fact regarding when Maldonado first suspected he suffered an appreciable and actual harm and that it was a result of wrongdoing. We reverse the judgment.
FACTS
The following basic facts are undisputed. Medivators manufacturers a disinfectant cleaning solution containing glutaraldehyde, called Rapicide High Level Disinfectant and Sterilent (Rapicide), which is used to clean and sterilize hospital equipment. Placentia-Linda Hospital (Hospital) employed Maldonado, where he used Rapicide to clean the scopes used in gastrointestinal procedures. In the cleaning room, he wore protective clothing, including gloves, a gown, and a mask. The mask, shielding his eyes and mouth, did not include a respirator. He recalled sometimes wearing an air-monitoring badge. He testified he did not know why he was given the badge.
Maldonado began to smell glutaraldehyde fumes at work in April or May 2011, and at the same time, he noticed a problem with the cleaning room's ventilation system. He stated the room was warm and stuffy and he could no longer hear the exhaust system. He complained multiple times about the ventilation system and his work conditions to several different people. He was repeatedly told there were no problems with the cleaning room. At the same time, Maldonado reported he began experiencing flu-like symptoms that he associated with working in the cleaning room. Specifically, he experienced headaches, watery eyes, coughing, and sneezing while in the room. The ailments would subside when he went home and reoccur at work the next day. He initially did not seek medical treatment.
Over the next several months, Maldonado's physical symptoms worsened. By mid-July, he was experiencing nosebleeds, tightness in his chest, and wheezing. He also had difficulty breathing. He reported these problems to his supervisor, Marilyn Mandas, who referred him to the employee health nurse, Lori Cox. Cox sent him back to work, saying he was making things up and was crazy. On October 3, 2011, Maldonado filled out an employee health assessment questionnaire and stated he was concerned about his exposure to fumes in the cleaning room. He explained he was concerned the fumes were making him sick.
At the end of October 2011, Maldonado again complained to Cox about his ailments, and she sent him to a worker's compensation medical clinic. The physician told Maldonado he was fine and to return to work. At a follow up appointment in early November 2011, the physician gave Maldonado an inhaler and sent him back to work. Maldonado returned to the clinic when his condition worsened and this time the physician referred Maldonado to a pulmonologist. On November 15, 2011, the pulmonologist diagnosed Maldonado as suffering from occupational asthma and advised him not to return to the cleaning room. Maldonado's job duties at work changed to remove him from the chemicals. However, his condition worsened and in April 2012 he was hospitalized. Thereafter, he was unable to return to work and 40-year-old Maldonado was deemed permanently disabled due to his lung disease. On October 22, 2013, Maldonado filed a lawsuit against Medivators, alleging strict liability, negligence, and breach of warranties. I. The Complaint
Maldonado alleged Medivators designed, formulated, manufactured, and sold Rapicide, knowing it contained glutaraldehyde. He maintained they knew this toxin was extremely dangerous to human health and could cause injury to the nervous, respiratory, and cardiovascular systems. Despite knowing the dangers, Medivators sold Rapicide to the general public. Maldanado was exposed to the toxin "in concentrations and/or levels significantly above any allowable standard" and sustained "significant injury."
Maldonado asserted Medivators knew Rapicide's chemical formulation was "out of compliance with any established national and/or local standard or regulation pertaining to the permissible levels of said chemicals and/or compounds . . . ." Medivators understood Rapicide contained chemicals "in violation of national and/or local health standards and/or regulations" and developed an alternative product called Rapicide OPA/28 High-Level Disinfectant (ROPA). This new disinfectant formula did not contain glutaraldehyde. However, Medivators did not stop selling Rapicide. "[Medivators] began selling two products that were to be . . . used for the same purpose by the public." To maximize profits, Medivators did not warn the public Rapicide contained a dangerous toxin and that a safer disinfectant, ROPA, was available for purchase.
Maldonado alleged he was exposed to Rapicide, containing glutaraldehyde while he was employed as an Endoscopy Laboratory Technician at the Hospital from 2004 to 2012. His contact with this toxic chemical caused him injuries diagnosed "within the two years of the filing of this complaint." He added, "At no time prior to [or] within the two years of the filing of this complaint did [he] have any knowledge and/or reasonable suspicion that his injuries were in any way connected, associated, and/or caused by his exposure to . . . Rapicide . . . ." The complaint further alleged, "[Maldonado] is a lay person without medical and/or toxicological knowledge, no one personally advised [him] of the tortious cause of his injuries, no medical or scientific treatise disclosing such tortious cause came to [his] attention, and there was no general dissemination of the health hazards found in [Maldonado's] place of employment being the cause of his injuries."
Maldonado described his injuries as follows: "As a result of [his] exposure to the glutaraldehyde . . . said exposure resulted in bodily, organ, cellular invasion, destruction, damage, mutation and/or change culminating in severe physical and mental injuries, including obstructive airway disease, industrial asthma, neuro-cognitive and neurological injuries, anxiety and depression, as well as cardio-vascular injury. [Maldonado] is suffering from heart failure and [is] in need of a lung transplant." II. Summary Judgment Motion
Medivators alleged the complaint was barred by the two-year statute of limitations for personal injury caused by exposure to a hazardous material or toxic substance. (Code Civ. Proc., § 335.1.) Alternatively, it argued summary judgment could be entered because it did not owe Maldonado a duty of care pursuant to the "sophisticated user doctrine" or "sophisticated intermediary doctrine."
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
In support of the statute of limitations defense, Medivators alleged Maldonado should have been aware of his injury as early as April or May 2011, and he certainly had reason to suspect the cause of his injuries by July 2011. As such, the complaint filed October 2013 was untimely.
Medivators submitted evidence proving Maldonado had 20 years experience working as a licensed vocational nurse (LVN). The Hospital employed him from 2004 to 2012. Before that he worked at Brea Hospital, Sorenson Convalescent Hospital, and Whittier Medical Center. When working at the hospitals cleaning medical equipment with Rapicide, Maldonado wore a personal air-monitoring badge and a facemask. Medivators argued it should be inferred from this evidence Maldonado knew the cleaning chemicals were hazardous.
To prove the statute of limitations was triggered in April or May 2011, Medivators relied on Maldonado's written response to a questionnaire prepared in connection with his workers' compensation case. He was asked to describe his work injury in chronological order.
On March 18, 2013, nearly two years after his lung disease diagnosis, Maldonado wrote the following: "[A]round April/May 2011 the cleaning room ventilation system [at] the gastroenterology department [at the] Hosp[ital] was not working properly[.] [E]very morning when I opened the lab the cleaning room was hot and felt stuffy and [had] a strong smell of glutaraldehyde fumes. I reported this to [the] engineering department on a daily basis and also to my supervisor . . . Mandas. [D]ifferent people from engineering [came and checked] the room but I was always told everything [was] O.K. . . . I kept insisting the room was not O.K. I [did not hear] the exhaust system work as before and the room [was] always hot [and] stuffy. After [being] in the room for a while I got used to the fumes [and] I just noticed I always had a headache, watery red eyes, sneezing, coughing, [and] sore throat[.] [It] felt like a flu[]. I [would] go home after work, and after [being] home for a few hours the symptoms go away. This went on for months. I continued to work in the cleaning room in spite of the inadequate ventilation. I wear [a] surgical mask. I was given a respirator mask by the employee health nurse. The fumes were a lot more stronger when the glutaraldehyde chemical was change[d] from the medivators or cleaning machines, [which] was done every 28 days or whenever the daily test failed. [M]y symptoms kept getting worse. I develop[ed] [a] rash on my forehead, my face [would] be flush[.] [I experienced] dizziness, headaches, feeling tired, short[ness] of breath, [and nosebleeds]. I used to run [five] miles Monday [through] Friday and 10 miles on Saturday [and] 10 on Sunday. I noticed I cut down my running due to shortness of breath to a point when I was not able to do it anymore. I will become short of breath [after] any physical exertion activity."
We note Maldonado's written statement contained an additional page that Medivators did not mention in its moving papers. Maldonado wrote he went to see the employee health nurse, Cox, on October 31, 2011. "I told her I need[ed] to see a doctor. I was not getting better as time went by I was worse. [I was] now to a point that walking from the hospital to the parking lot I [would] get [shortness of breath (SOB)]. She sent me to . . . a workers' [compensation] clinic. I saw a doctor[, who] listen[ed] to my lungs [and] took a chest x[-]ray."
Maldonado recounted that the workers' compensation doctor opined he was fine and sent him back to work. He scheduled a follow up appointment on November 3, 2011. "[H]is [diagnosis] was exposure to chemical fumes." When Maldonado returned for his follow up appointment, he asked to see a pulmonologist. The workers' compensation doctor gave Maldonado an inhaler and sent him back to work. Maldonado returned to the workers' compensation clinic on November 10, 2011, because his "symptoms were worse than before." He showed the doctor information he recently obtained regarding his exposure to high levels of glutaraldehyde and the doctor approved his request to see a pulmonologist. Maldonado wrote he saw the pulmonologist, Robby T. Ayoub, on November 15, 2011, and since then has remained under his care.
Medivators also submitted two medical reports prepared during Maldonado's workers' compensation case. Timothy Reynolds, a physician, stated Maldonado's chronic lung disease "has been present" since the summer of 2011. Dr. David Sones, who performed a psychiatry examination and interviewed Maldonado in December 2012, wrote Maldonado's injury started in April 2011. He stated Maldonado "'began experiencing headaches, nosebleeds, shortness of breath, and a rash on his forehead.'"
In his workers' compensation case deposition, Maldonado stated he was truthful when speaking with the doctors. He also testified his medical problems (nosebleeds, difficulty breathing, wheezing) started in July 2012, and he reported them to his supervisor, Mandas, and the employee health nurse, Cox. Although not discussed by Medivators in the briefing, Maldonado also revealed during this deposition that Mandas referred him to the employee health nurse who did "nothing." Maldonado stated Cox "sent me back to work, told me that I was making things up, I was crazy."
To support its motion, Medivators also relied on Maldonado's response to an employee "Annual Health Assessment Questionnaire." On October 3, 2011, in response to a question about workplace safety issues, Maldonado wrote he was concerned about "'exposure to fumes.'" III. Opposition to Summary Judgment Motion
Maldonado stated his products liability action was based on evidence Medivators admitted it was unaware glutaraldehyde could cause asthma, and therefore, did not warn about the toxin on Rapicide's labels or material safety data sheets. Maldonado denied having prior knowledge about the dangers of Rapicide. In his deposition, Maldonado stated his medical training to become a nurse did not include lessons about the safe handling of disinfectant chemicals. When working, Maldonado would clean the medical devices in a basin by hand then place them into a sterilization machine that used Rapicide. During his workday, Maldonado could sometimes smell fumes emitted from the machine. He alleged, "On or about October 25, 2011, . . . Maldonado began to feel sick, but [he] was not aware that it was his exposure to the chemicals in the Rapicide that was causing such illness until his physician diagnosed him and told him that on November 22, 2011. [Citations.] [Maldonado] was diagnosed with industrial asthmas due to the [g]lutaraldehyde exposure contained in . . . Rapicide . . . ."
To support the opposition, Maldonado submitted evidence Medivators' "[p]erson [m]ost [k]nowledgeable" admitted he was also unaware glutaraldehyde caused industrial asthma. Maldonado argued, "It would certainly stand reason on its head if [Medivators] should be able to successfully assert a motion for summary judgment arguing [his] action should be dismissed because [Maldonado] should have been aware as a 'sophisticated user' that glutaraldehyde was . . . a known cause of industrial asthma when [Medivators] itself, as the manufacturer of the subject product testified under oath that it is unaware of this hazard."
In addition, Maldonado complained Medivators's separate statement of undisputed facts was defective because it failed to separately identify each cause of action, claim, or issue with a supporting material fact. In addition, the separate statement did not highlight undisputed material facts that would be dispositive.
On the statute of limitations issue, Maldonado asserted his cause of action accrued on November 22, 2011, when his physician first informed him that he had a specific debilitating illness caused by his exposure to Rapicide. His complaint was filed on October 22, 2013, within the two-year limitations period. Maldonado cited case law discussing the causation elements in occupational disease cases, which differed from other types of wrongful injures. He argued there were two required elements, namely, (1) awareness of a specific illness, as well as (2) knowledge or identification of the specific product causing that illness. He maintained toxic tort actions do not generally accrue until the plaintiff receives an informed diagnosis. He concluded Medivators failed to present evidence as to when his action accrued and erroneously focused on the timeframe he became suspicious of wrongdoing rather than when he first learned the cause of his illness. IV. The Trial Court's Ruling
After considering argument from both parties, the trial court took the matter under submission. In a minute order, prepared June 3, 2015, the court granted the summary judgment motion on the grounds the action was barred by the two-year statute of limitations. It ruled Medivators met its initial burden of proof under section 437c, proving the action was barred by the limitations period. The court found relevant Maldonado's written statement, dated March 20, 2013, admitting that in April or May 2011 the ventilation system was not working, he smelled glutaraldehyde fumes, and he experienced flu-like symptoms that dissipated when he went home. The court also relied on Maldonado's deposition, where he testified his symptoms, that included nosebleeds, difficulty breathing, and wheezing began in July 2011. The court also cited to Reynold's testimony Maldonado had a chronic lung disease since "'approximately the summer of 2011.'" It also referred to the October 3, 2011, questionnaire, on which Maldonado indicated he believed there were safety concerns about exposure to fumes because he was getting sick. Finally, the court found relevant evidence showing Maldonado, before getting sick, knew the chemical disinfectant could be toxic because he wore a mask to protect himself from the fumes.
The court noted, "[Maldonado] did not submit a declaration contradicting any of this evidence, including his suspicion prior to October 2011 that toxic fumes from glutaraldehyde were the cause of his ailments." The court rejected Maldonado's argument the statute of limitations did not begin to run until November 22, 2011, the day he was first diagnosed with a specific illness (occupational asthma). It stated Maldonado was "incorrect in his interpretation of the law on delayed discovery." The court stated that once Maldonado became suspicious his physical ailments were caused by Medivators's toxic chemicals the statute started running.
DISCUSSION
I. Applicable Legal Principles
The statute of limitations for an action for injury to an individual caused by the wrongful act or neglect of another is two years. (§ 335.1.) "In any civil action for injury or illness based upon exposure to a hazardous material or toxic substance, the time for commencement of the action shall be no later than either two years from the date of injury, or two years after the plaintiff becomes aware of, or reasonably should have become aware of, (1) an injury, (2) the physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another, whichever occurs later." (§ 340.8, subd. (a).)
Section 340.8 codified California's "discovery rule," which is described in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly), and Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048 (Clark). "Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. [T]he limitations period begins once the plaintiff '"'has notice or information of circumstances to put a reasonable person on inquiry. . . .'"' [Citations.] A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly, supra, 44 Cal.3d at pp. 1110-1111, fn. omitted.)
Under the discovery rule, it is not necessary that a plaintiff be aware of "the specific causal mechanism by which he or she has been injured." (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1298 (Knowles); Rivas v. Safety-Kleen Corp. (2002) 98 Cal.App.4th 218, 229 (Rivas).) A plaintiff is deemed to have discovered the "cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least 'suspects . . . that someone has done something wrong' to him [citation]." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) The test is objective. The plaintiff is held both to his actual knowledge and knowledge he could have discovered by investigating available sources. (Jolly, supra, 44 Cal.3d at p. 1109; McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108 ["If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation"].) The determination whether "'wrongdoing'" has occurred is made according to a layperson's understanding. (Jolly, supra, 44 Cal.3d at p. 1110, fn. 7.) In the context of a products liability action such as this, the statute of limitations begins to run when the plaintiff suspects or has reason to suspect that a product caused his injury. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 813; Jolly, supra, 44 Cal.3d at pp. 1110-1111.)
Ordinarily, resolution of the statute of limitations issue is a question of fact. However, if the uncontradicted facts lend themselves to a single legitimate inference, summary judgment is proper. (§ 437c, subd. (c); Jolly, supra, 44 Cal.3d at p. 1112.) In reviewing a grant of summary judgment based on the statute of limitations, our task is to identify the issues framed by the pleadings and "determine whether only one legitimate inference may be drawn from [the undisputed facts] regarding the amount of notice or information of circumstances that would put a reasonable layperson on inquiry about potential wrongdoing that harmed [him or] her, such as will begin the running of the limitations period." (Clark, supra, 83 Cal.App.4th at p. 1055.) II. Analysis
Medivators argued, and the trial court agreed, only one legitimate inference could be drawn from the facts—by the summer of 2011 Maldonado was on inquiry notice the chemicals he was inhaling at work might be causing his medical ailment. Under the discovery rule, the two-year statute of limitations was triggered by May 2011, and therefore, the complaint filed October 22, 2013, was time barred and summary judgment properly granted.
We conclude the undisputed facts do not give rise to only one legitimate inference. Rather, we find there is a triable issue of fact regarding when Maldonado first reasonably suspected he was suffering from an appreciable and actual harm and that it was the result of wrongdoing, precluding summary judgment on limitations grounds.
The parties cite to several instructive cases upholding the grant of summary judgment on statute of limitations grounds, when the undisputed facts support only one legal conclusion, i.e., a reasonable person would have suspected their injury had a wrongful cause on a certain date. For example, in Rivas, supra, 98 Cal.App.4th 218, 222, the court upheld a grant of summary judgment on limitation grounds. Plaintiff suffered kidney injuries caused by his use of a chemical solvent at his workplace. (Ibid.) He had worked with the solvent daily for almost 18 years. (Id. at p. 223.) A number of events took place before he filed a complaint against the solvent manufacturer for negligence, strict liability, breach of warranty, and fraudulent concealment. (Id. at p. 222.) First, almost seven years before filing suit, plaintiff saw a doctor who diagnosed his kidney disease, asked him about the chemicals he used at work, and told him to stay away from the solvent. (Id. at p. 223.) Plaintiff complied and several years later he received a kidney transplant. The following year, plaintiff consulted with a workers' compensation attorney to investigate whether the solvent caused his kidney damage and then filed a workers' compensation action seeking relief based on kidney injuries suffered as a result of exposure to toxic fumes, gases, and liquids. (Ibid.) Nearly three years later, plaintiff and his wife filed their complaint against the solvent manufacturer. (Ibid.)
The Rivas court concluded that even if the doctor's advice to keep away from the solvent could be seen as "ambiguous" and insufficient to arouse a reasonable person's suspicion, the workers' compensation claim was "definitive proof that he had a suspicion that someone ha[d] done something wrong to [him] long before his civil complaint was filed. . . ." (Rivas, supra, 98 Cal.App.4th at p. 229.) The court noted plaintiffs reliance on cases predating Jolly were unavailing. (E.g., Pereira v. Dow Chemical Co. (1982) 129 Cal.App.3d 865; Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22.) It recognized those cases constructed "a rule precluding accrual of the statute of limitations until the injured party has been explicitly informed by his doctors that a certain substance or product caused the medical disorder or has had an opportunity to personally review medical records specifying the cause of the disorder." (Rivas, supra, 98 Cal.App.4th at p. 228.) It held plaintiff's belief the limitations period is delayed until the "claimant has knowledge of specific facts establishing causation [had] been superseded by Jolly." (Ibid.) "As we have discussed, the Supreme Court specifically rejected the proposition that 'the statutory clock did not begin to tick until the plaintiff knew or reasonably should have known of the facts constituting wrongful conduct, as well as the fact of her injury and its relation to [the product],' in favor of the rule that the statute of limitations begins to run when the claimant 'suspects or should suspect' that his or her injury was 'caused by [someone's] wrongdoing . . . .' [Citation.]" (Ibid.)
Similarly, in Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1622-1624, the appellate court determined there were no triable issues of fact on the question of when plaintiff suffered appreciable injuries caused by mold exposure. There was undisputed evidence plaintiff suffered from severe bouts of asthma and was hospitalized in the Summer of 1984. (Id. at pp. 1616-1617.) In October 1984, plaintiff had her condominium unit tested for mold contamination, retained a microbiologist to pinpoint the source of the mold, and her husband sent a letter to the defendant stating the flooding caused mold that caused plaintiff to suffer extreme allergic reactions a year earlier. (Id. at pp. 1617-1618.) Based on this evidence, the court concluded "reasonable minds can draw only one conclusion—that [the plaintiff] suffered appreciable and actual harm . . . and was also aware of its negligent cause by October 1984." (Id. at p. 1624, fn. omitted.) The court determined any misdiagnosis of her medical condition did not delay the limitations period because plaintiff injuries "constituted actual and appreciable harm" and she was well aware of its negligent cause. (Id. at p. 1625.) "She cites no authority for the proposition that a cause of action cannot accrue until a plaintiff can attach a medical diagnosis, whether correct or incorrect, to her condition . . . ." (Id. at p. 1625.)
To summarize, both Rivas and Miller are cases where only one inference could be drawn from the undisputed facts, i.e., plaintiff suffered an appreciable and actual harm and suspected that injury was caused by wrongdoing, but failed to file their action within the statutorily set limitations period. These cases also confirm the trial court's determination that in occupational disease cases (toxic tort actions) the limitations period is not necessarily delayed until the injured party receives a diagnosis connecting a certain substance with a medical disorder. (Rivas, supra, 98 Cal.App.4th at p. 229 [cases describing different standard and predating Jolly were unavailing].)
However, we find this case is more analogous to those where the undisputed facts are susceptible to more than one reasonable inference. (See Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392 (Rosas).) We find the Rosas case particularly instructive.
In that case, plaintiff worked for a company that manufactured and sold food-flavoring products. (Rosas, supra, 236 Cal.App.4th at p. 1383.) In 1996, he began working with flavorings using diacetyl and sometimes he experienced pain or irritation in his nose, eyes, throat, and lungs. (Ibid.) A cough did not develop until at least four years later in 2000 or 2002. (Ibid.) He saw a doctor for "flu-like symptoms and was given antibiotics." (Ibid.) He returned to work with a doctor's note containing the diagnosis of "'chronic acute bronchitis.'" (Ibid.) Plaintiff was hospitalized in 2003 for symptoms of pneumonia, and plaintiff "shared with his doctors his suspicions that his illness might be related to chemicals at work, but the doctors never communicated a diagnosis to him or told him his illness was due to work." (Ibid.) Plaintiffs coughing and flu-like symptoms continued in 2004 and in 2005 he asked to be moved from the powder production room to the warehouse because he believed the powder related to his "increasing cough." (Ibid.)
In 2005 plaintiff was referred to a specialist because his symptoms were no longer "'flu-like.'" (Rosas, supra, 236 Cal.App.4th at p. 1383.) "[T]he pulmonary physician did not express concern about anything in his medical history that would lead a person to believe that his illness (by that time diagnosed as '[s]evere obstructive lung disease') was caused by a wrongful act of another." (Id. at p. 1395.) In 2006, plaintiff's primary care physician said it was normal for people who worked with powder to have allergic symptoms like a cough and runny nose. He was advised to avoid work involving chemicals or "'moderate to heavy exertion.'" (Id. at p. 1384.) A few months later, the pulmonary physician stated the likely cause of plaintiffs' lung disease was "an old infection" and while "exposure to . . . strong odors or chemicals could exacerbate" plaintiff's condition he did not believe "exposure to chemicals had caused the lung condition." (Ibid.)
The Rosas plaintiff made several more visits to his doctors, but it was not until November 2006 that he received a diagnosis placing him on inquiry notice of wrongdoing. At that time, plaintiff (along with all his coworkers) met with doctors from the National Institute for Occupational Safety and Health (NIOSH). (Rosas, supra, 236 Cal.App.4th at p. 1385.) A physician performed a pulmonary function test and diagnosed plaintiff as having bronchiolitis obliterans, an illness caused by diacetyl. (Ibid.) Plaintiff continued working in a place where he was no longer exposed to chemicals, but his condition worsened and he was deemed "'completely and totally permanently disabled, due to severe, chronic lung infection'" in March 2007.
Plaintiff in the Rosas case filed a complaint against his employer on October 30, 2008. (Rosas, supra, 236 Cal.App.4th at p. 1385.) The employer filed a summary judgment motion, arguing plaintiff was on inquiry notice more than two years before filing his complaint. It maintained plaintiffs experienced "adverse health effects" soon after working in the powder room and by 2003 his exposure to diacetyl was making him sick. (Id. at p. 1386.) The employer argued the statute of limitations was triggered no later than 2005, when plaintiff was diagnosed with a severe lung disease and he asked to be moved to the warehouse because he suspected the chemicals were making him sick. (Ibid.) Plaintiff opposed the motion, arguing that until he received the diagnosis in 2006 of bronchiolitis obliterans caused by diacetyl exposure, "he was unaware of an injury significant enough to trigger the statute of limitations." (Ibid.) He added that because his doctors did not believe or advise him the workplace chemicals were causing his lung disease, there was a triable issue of fact about whether the facts were sufficient to trigger a duty to inquire as to a wrongful cause before his diagnosis in November 2006. (Ibid.) The appellate court determined he was right, and the trial court erred in granting summary judgment. (Id. at p. 1389.)
The Rosas court stated plaintiff argued the evidence did not establish he "was or should have been aware of all three elements required to trigger the statute of limitations under section 340.8: injury, cause, and wrongfulness." (Rosas, supra, 236 Cal.App.4th at p. 1390.) It determined there was no need to decide the injury element because the employer failed to establish, as a matter of law, a reasonable person would suspect a wrongful cause lead to plaintiff's chronic lung condition. The court discussed cases holding summary judgment cannot be granted when the facts are susceptible to more than one reasonable inference or the undisputed facts do not support the finding a reasonable person would suspect an injury was wrongfully caused. (Id. at p. 1392, citing (Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th 1202, 1208-1209 [plaintiff suffered from heart valve disease after taking diet drug but no doctor said symptoms connected to disease or the drug]; Clark, supra, 83 Cal.App.4th 1048, 1060 [plaintiff developed allergy to latex but unaware of wrongdoing (defective manufacturing) until she read an article].)
The Rosas court faulted the trial court for failing to see the evidence gave rise to more than one legitimate inference and for erroneously construing the employer's evidence broadly and plaintiff's evidence narrowly when drawing inferences in favor of the employer. (Rosas, supra, 236 Cal.App.4th at p. 1394.) The court recited the undisputed facts, acknowledging plaintiff experienced some illness in 2001 and 2003, and his doctors did not express undue concern. (Id. at p. 1395.) When his symptoms were no longer "'flu-like,'" and he was referred to a pulmonary specialist, the physician did not express concern about anything in plaintiff's medical history that would lead a person to believe his illness was caused by the wrongful act of another. (Ibid.) Plaintiff's primary care physician and pulmonologist never suggested his lung disease was caused by chemical exposure, but rather explained it was a factor aggravating his symptoms. (Ibid.) The court held, "Rather than suspecting he or she had been wronged in some way, a reasonable person would do what [plaintiff] did, which is to visit a doctor when a cold and cough continues and seems to be getting worse. But when a doctor tells a patient his symptoms are normal, and a lung specialist is unable to determine the cause of the patient's lung disease, we cannot conclude as a matter of law that a reasonable person would suspect the disease has a wrongful cause. In many ways, the facts of this case are similar to those at issue in Clark, where the plaintiff suffered from a debilitating allergy to latex gloves but did not have any reason to suspect wrongdoing until after joining a support group and receiving an article about possible defective manufacturing. (Clark, supra, 83 Cal.App.4th at p. 1053.) Without additional facts, we cannot determine as a matter of law that the facts available to Rosas before November 2006 would put a reasonable person on inquiry notice that his disease was caused by wrongdoing. [Citation.]" (Ibid.)
The court in Rosas determined the trial court improperly rejected plaintiff's argument he could reasonably rely on the doctor's inability to determine the cause of his lung disease. (Rosas, supra, 236 Cal.App.4th at pp. 1395-1396.) "[W]e conclude instead that it is reasonable to expect that a patient with no information about potential wrongdoing would rely on the assurance of a pulmonary physician that chemical exposure is only aggravating the person's symptoms, not causing his underlying disease. (See, e.g., Fox, supra, 35 Cal.4th at p. 813 ["a plaintiff's ignorance of wrongdoing involving a product's defect will usually delay accrual because such wrongdoing is essential to that cause of action"]; Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1395 [examining the nature of the subjective suspicion necessary to trigger the limitations period during the continued existence of a doctor-patient relationship] . . . )" (Id. at p. 1396.)
The court also found the context of plaintiff's workplace relevant to whether a reasonable person would suspect wrongdoing. (Rosas, supra, 236 Cal.App.4th at p. 1396.) "This is not a scenario where the employee is working with chemicals that are recognized as being hazardous. (See, e.g., Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522 [analyzing when cause of action accrued where plaintiff's mother exposed to hazardous and toxic chemicals in semiconductor industry, leading to plaintiff's birth defects]; Rivas, supra, 98 Cal.App.4th at p. 223 [plaintiff's daily work tasks included using chemical solvent to degrease automobile parts].) To the contrary, it would be reasonable to assume that chemicals used to make food flavorings intended for human consumption would be relatively safe." (Ibid.)
The facts of the case before us are remarkably similar to the Rosas case. Although Maldonado worked for many years with chemical disinfectants in his workplace, he did not experience flu-like symptoms until the ventilation system malfunctioned in the cleaning room in April 2011. Although he complained about his working conditions to the engineering department and his supervisor, they did not express concern. Because the symptoms abated when he was at home, Maldonado claimed he had no reason to suspect his illness was permanent or debilitating.
The trial court concluded the statute of limitations was triggered because Maldonado simply began to experience physical symptoms. This is not the test. Under section 340.8, three elements trigger the statute of limitations, i.e., injury, cause, and wrongfulness. Would a reasonable person experiencing intermittent flu-like ailments after working in a hot stuffy disinfectant cleaning room reasonably suspect (1) these symptoms were the first signs of a permanent and debilitating lung disease, and (2) the developing industrial asthma was directly caused by a chemical manufacturer's misconduct? Like the Clark and Rosas plaintiffs, Maldonado certainly suffered a physical ailment but there remains a triable issue of fact regarding whether he had reason at that time to suspect Medivators's wrongdoing.
Maldonado's physical symptoms must be viewed in context. In April and May 2011, when he complained about the ventilation system, he was repeatedly told everything was okay. In July 2011, when he contacted employee health nurse Cox, he was told he was fine and to return to work. When his ailments worsened, Maldonado sought medical treatment again and Cox sent him to a worker's compensation clinic where, once again, he was told he was fine and sent back to work. Neither the nurse nor the workers' compensation physician suggested he had contracted industrial asthma caused by his exposure to chemicals at work. They did not indicate he should limit or stop his exposure to the chemicals. This evidence supports Maldonado's claim he did not suspect nor had reason to suspect before October 22, 2011, that the chemical exposure was causing a debilitating and permanent lung disease. Not even at the November 3, 2011, follow up appointment did the physician give any indication Maldonado's ailments were serious, permanent, or potentially caused by wrongdoing. The physician gave Maldonado an inhaler and sent him back to the unventilated cleaning room. It was not until November 22, 2011, that the pulmonologist diagnosed Maldonado as suffering from occupational asthma.
In addition, we conclude the trial court should not have so narrowly construed the workers' compensation reports and testimony attached to Medivators's summary judgment motion in the manufacturer's favor. In its ruling, the court cited to Reynold's testimony Maldonado had chronic lung disease since Summer 2011 as proof Maldonado should have known he was wrongfully harmed. The testimony the court was referring to related to Reynolds's medical expert opinion in the workers' compensation case regarding TTD (Temporary Total Disability Benefits). Reynolds was questioned about the date Maldonado "became TTD." When asked if there was a legal definition of chronic lung disease in the Labor Code, Reynolds replied there was not. Reynolds next stated he was familiar with the exception to the two-year temporary disability cap if someone suffers from chronic lung disease and agreed Maldonado could fall into the exception. Reynolds explained, "He does have chronic lung disease. That disease has been present since approximately the summer of 2011. . . . With the amount of care that he's required, it has not remitted between the summer of 2011 and the present, and chronic is a medical term that means at least three continuous months in duration; so medically he has chronic lung disease."
When read in context, Reynold's testimony was not relevant to whether Maldonado suspected or should have suspected he had contracted a chronic lung disease due to wrongful conduct during the Summer of 2011. The medical expert's opinion regarding when Maldonado's lung disease first surfaced does not create the inference Maldonado had the expertise to self-diagnose his permanent lung disease at that time. Similarly, we found nothing in Reynold's or Sones's medical reports indicating anyone ever suggested to Maldonado before November 15, 2011, that exposure to glutaraldehyde fumes wrongfully caused him to contract a permanent and disabling disease, industrial asthma. The doctors' reports indicated Maldonado did not initially suspect he had been wronged by the chemical manufacturer or understand the dire nature of the disease he had contracted.
The court also found relevant that Maldonado sought repair of the ventilation system and on October 3, 2011, reported to the hospital in a questionnaire he believed the ventilation problem was causing him to be sick. Different inferences can reasonably be drawn from this evidence. Maldonado may have understood the chemical exposure was aggravating a sensitivity or short-term reaction, not that it was causing the underlying disease. There exists a triable issue of fact whether the information available to Maldonado before his November 22, 2011 diagnosis would put a reasonable person on inquiry notice he had contracted a permanent disease and it was caused by Medivators's wrongdoing.
The court mentioned Maldonado "had experience using glutaraldehyde, knew it was a strong disinfectant that could be toxic, and wore a mask, among other things, to protect his nose, eyes and mouth from the fumes." Our review of the record shows Medivators failed to present evidence conclusively proving Maldonado knew glutaraldehyde's fumes caused industrial asthma. We note Maldonado presented evidence the manufacturer's PMK did not know this fact.
Maldonado testified he typically wore a mask that merely shielded his eyes and mouth. This type of mask would certainly prevent chemicals from splashing onto those sensitive areas. Medivators did not present evidence that established the mask also stopped or filtered the chemical fumes being inhaled into Maldonado's lungs. Indeed, there was nothing in the motion to suggest Maldonado's standard uniform included any gear to protect his respiratory system. In his statement to the workers' compensation psychologist, Maldonado mentioned a nurse gave him a respirator mask at some point after he complained about the lack of ventilation. It could reasonably be inferred the respirator mask was only intended to temporarily alleviate and accommodate Maldonado's complaints about the broken ventilation system. The mask was not supplied in recognition of the fact the fumes were permanently damaging his lungs. The facts do not conclusively support only one inference that Maldonado knew inhaling glutaraldehyde would cause him to sustain a permanent disability.
It cannot be said Medivators's evidence conclusively proved Maldonado discovered the essential facts to constitute a products liability action before October 22, 2011. Although Maldonado certainly connected the bothersome flu-like symptoms to ventilation issues at work, there is a triable issue of fact regarding when Maldonado knew or should have suspected wrongdoing by a chemical manufacturer. For example, one can feel nauseous after inhaling gas fumes at a filling station, but because these symptoms dissipate when you drive away, one does not expect or connect the short-lived discomfort to a future permanent life threatening condition. Triable issues of fact remain regarding his knowledge or awareness that Rapicide's manufacturer's wrongdoing affected the product that caused his industrial asthma. We find particularly relevant evidence a nurse and worker's compensation doctor assured Maldonado he was fine and could return to his job duties cleaning medical equipment. Although he may have understood the chemical exposure was aggravating his symptoms, there is a triable issue of fact regarding if he had reason to also suspect it was causing an underlying lung disease. III. Alternative Grounds for Summary Judgment
Medivators assert it is entitled to summary judgment under the sophisticated user doctrine or the sophisticated intermediary doctrine. We disagree.
We begin our analysis by noting these doctrines represent two different affirmative defenses. There is a heavier burden on defendants moving for summary judgment based on an affirmative defense. (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.) Instead of presenting enough evidence to negate a single element of a cause of action, it was Medivators's obligation to "complete its proof of the affirmative defense." (Ibid.) Thus, where a defense has several elements, lack of substantial evidence on any element bars relief "even if the plaintiff failed to introduce a scintilla of evidence challenging that element." (Ibid.) In short, the burden does not shift to Maldonado unless Medivators successfully establishes a complete defense.
The trial court did not rule on these defenses, and we conclude it would not have been an appropriate basis for entering summary judgment for two reasons. First, the defenses only apply to failure to warn related causes of action. The defenses would not apply to Maldonado's claims the product was defectively designed or manufactured. (See Collin v. Calportland Co. (2014) 228 Cal.App.4th 582, 601.) As stated in our factual summary, Maldonado's complaint alleged Medivators knowingly sold Rapicide "with unlawfully high concentrations" of toxic substances, thus having a product defect in either its design or manufacturing. Second, Medivators did not carry its burden of conclusively proving the required elements for the two affirmative defenses. A. Sophisticated User Defense
Our Supreme Court in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56 (Johnson) adopted the sophisticated user defense. This affirmative defense bars strict liability and negligence claims based on the failure to warn about a particular risk in a defendant's product if (1) the plaintiff is shown to be a 'sophisticated user' of the product and (2) the general class of similar sophisticated users knew or should have known of the particular risk alleged by the plaintiff at "the time of the plaintiff's injury." (Id. at pp. 71, 74.)
Medivators's separate statement did not present undisputed facts that would be dispositive on this defense. For example, Medivators failed to present evidence to satisfy Johnson's second requirement because there was no proof the claimed class of sophisticated users were or should have been aware of the debilitating health risks associated with inhaling Rapicide at the time of Maldonado's exposure. Medivators's evidence Maldonado was an experienced LVN, who wore a protective facemask, was insufficient to establish as a matter of law that Maldonado or others like him were instructed on or understood the dire risk of irreversible lung damage.
In contrast, the plaintiff in Johnson was "a trained and certified heating, ventilation, and air conditioning (HVAC) technician" who suffered injuries due to his repeated exposure to R-22, a refrigerant. (Johnson, supra, 43 Cal.4th at pp. 61-62.) Defendant prevailed in its summary judgment motion based on evidence and expert testimony proving HVAC technicians have known of the risks associated with R-22 for decades. (Ibid.) State regulations required employers to train technicians using material safety data sheets that noted the risk at issue in the case. (Id. at p. 62.) The Johnson plaintiff had the highest certification available from the Environmental Protection Agency, which allowed him to work on large commercial air conditioning systems. (Id. at p. 61.)
Medivators presented no evidence that the risk of developing industrial asthma was clear to anyone when Maldonado was using Rapicide. There was nothing to suggest the chemical inhalation risks were disclosed or discussed with LVN students—the class of users—as part of their licensing process or safety training. Medivators do not point to any state regulations requiring LVN students be trained to understand the risks or injuries associated with cleaning disinfectants. Evidence that Maldonado was not issued a respirator as part of his work uniform suggests the risks were not fully appreciated or understood by anyone on the nursing staff. As noted earlier, he was given a mask to shield his eyes and nose but nothing to protect his exposed respiratory system organs from chemical fumes, i.e., his throat and lungs. We conclude Medivators failed to carry its burden of proving experienced LVN's knew or should have known, as a matter of law, they would contract occupational asthma by inhaling fumes from a cleaning disinfectant. Medivators needed additional evidence to conclusively establish this affirmative defense, and the burden did not shift to Maldonado to refute the defense. Application of the sophisticated user doctrine would not have been an appropriate basis for entering summary judgment. B. Sophisticated Intermediary Defense
Likewise, Medivators failed to satisfy their burden of proof on the sophisticated intermediary doctrine defense. This doctrine was officially adopted in California by the Supreme Court in Webb v. Special Elec. Co. (2016) 63 Cal.4th 167, 187 (Webb).) "Under this rule, a supplier may discharge its duty to warn end users about known or knowable risks in the use of its product if it: (1) provides adequate warnings to the product's immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product. Because the sophisticated intermediary doctrine is an affirmative defense, the supplier bears the burden of proving that it adequately warned the intermediary, or knew the intermediary was aware or should have been aware of the specific hazard, and reasonably relied on the intermediary to transmit warnings. [Citations.]" (Ibid.)
These inquiries of sophistication and reasonableness typically involve questions of fact for the jury to resolve. "To establish a defense under the sophisticated intermediary doctrine, a product supplier must show not only that it warned or sold to a knowledgeable intermediary, but also that it actually and reasonably relied on the intermediary to convey warnings to end users. This inquiry will typically raise questions of fact for the jury to resolve unless critical facts establishing reasonableness are undisputed. [Citation.]" (Webb, supra, 63 Cal.4th at pp. 189-190.)
Medivators argues these prongs were satisfied by evidence the Hospital was a sophisticated intermediary because its sole purpose was to treat patients in need of medical assistance, including asthma and exposure to chemicals. It presented evidence governmental agencies discussed the potential hazards associated with gluteraldyde. Medivators claimed the second prong of this defense was satisfied by evidence its person most knowledgeable, William Kent Francis, testified the company "provided customers with guidance such as appropriate labels, direction for use, so that they can operate and use our product in a safe and responsible manner."
We conclude the facts necessary to establish the second prong's "reasonableness" requirement were not decisively established by Francis' testimony. The affirmative defense requires evidence Medivators "reasonably relie[d] on the purchaser" (the hospital) to convey "appropriate warnings to downstream users" (LVNs) who would "encounter the product" at issue. (Webb, supra, 63 Cal.4th at p. 187.) As mentioned, "reasonableness" typically raises a question of fact for the jury unless there are critical facts establishing three factors. The first factor is gravity of risk. "If the substance is extremely dangerous, the supplier may need to take additional steps, such as inquiring about the intermediary's warning practices, to ensure that warnings are communicated." (Id. at p. 190; see Rest.2d Torts § 388, com. n, p. 309.) There is no dispute the risk posed by the product was serious and the likelihood of harm was highly probable and, thus, required additional precautions.
The second factor required consideration of the likelihood the intermediary would inform the downstream users. This requires evidence regarding knowledge of the intermediary's reliability. Medivators did not present any evidence suggesting it asked about or considered the hospital's level of knowledge about the specific risks at issue, its reputation for carefulness, or its willingness to communicate adequate warnings to its employees. (Webb, supra, 63 Cal.4th at p. 190; see Rest.2d Torts § 388, coms. l & n, pp. 307-308.)
The third factor was the feasibility of the manufacturer warning the downstream users. This factor is most relevant to the supplies of hazardous bulk materials because they often have no means to identify the ultimate users or have a way to communicate with them. (Webb, supra, 63 Cal.4th at p. 191.) In this case, Medivators did not supply separate chemicals in bulk. It manufactured a finished compound of chemical mixtures and sold different versions of its disinfectant to the public. It presented no evidence suggesting it could not have identified the types of employees who would be using the disinfectant in the course of their employment at the Hospital or that it made any effort to include appropriate warnings on the Rapicide containers sold and handled by these employees. In light of all of the above, we conclude Medivators's evidence did not establish a complete defense as a matter of law. Summary judgment was not appropriate on this basis.
DISPOSITION
The judgment is reversed, and the matter remanded. Appellant shall recover his costs on appeal.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.