Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 03CC13673 Sheila Fell, Judge.
The Law Office of John Derrick and John Derrick for Plaintiff and Appellant.
Drinker Biddle & Reath, Siobhan A. Cullen; Ulmer & Berne and Prentiss W. Hallenbeck, Jr., for Defendant and Respondent.
OPINION
IKOLA, J.
Plaintiff Meera Samanta appeals from a judgment for defendant Barr Laboratories, Inc. She had alleged defendant failed to warn her daughter’s physician about risks associated with its prescription drug. Defendant obtained summary judgment by offering evidence negating the element of causation. Its evidence showed the physician and the medical community already knew the undisclosed risks. Plaintiff offered no contrary evidence to raise a triable issue. We affirm.
FACTS
Plaintiff sued defendant and her daughter’s physician for wrongful death. She alleged defendant made an oral contraceptive that the physician prescribed in August 2002 for her daughter. She further alleged the drug caused her daughter to develop a blood clot, leading to a fatal pulmonary embolism after she had traveled to India. Plaintiff asserted three causes of action against defendant, which she concedes “boil down to” “‘a failure to warn....’” She alleged the undisclosed risks were the “unreasonable danger of blood clot and pulmonary embolism, muscle weakness and/or damage, and conditions related thereto....”
Defendant first moved for summary judgment in July 2009. It contended the allegedly inadequate warnings “cannot be a proximate cause of the injury alleged by plaintiff.” Defendant offered the physician’s declaration, in which she stated: “I don’t recall if I have ever relied upon any information about Kariva® published or disseminated by [defendant] in my practice. In fact, I cannot recall ever having read any information about Kariva® published or disseminated by [defendant].” The court denied the motion, finding a triable issue existed as to whether the physician relied upon defendant’s warnings.
Defendant filed a second summary judgment motion in December 2009. It asserted three grounds for summary judgment.
First, defendant contended “plaintiff cannot prove proximate cause.” It claimed the physician “was independently aware of the increase risk of pulmonary embolism with use of oral contraceptives....” It offered the physician’s deposition testimony that she tells her patients the risks associated with oral contraceptives include “[t]hrombi [and] emboli” — “If you were my patient, I’m going to tell you... you can have a clot in your deep veins of your legs, and you can have a clot in your lungs....”
Second, defendant addressed an unpleaded theory about long-haul flights. It stated: “Although plaintiff has not amended her Complaint to reflect this allegation, [defendant] has reason to believe that plaintiff intends to assert a duty on the part of [defendant] to have warned... about an increased risk of developing blood clots in the deep veins of the legs... as a consequence of taking a long-haul airline flight.” Defendant contended it “had no such duty” because “[r]isks caused by independently chosen activities, such as taking a long-haul flight, are not side effects of a prescription drug.” It also asserted it “had no duty to warn of a risk commonly known to the medical profession, and failure to warn of such a risk cannot be the legal cause of the alleged damages.” Defendant offered a cardiologist’s expert opinion that “the asserted association between long-haul airline flights and an increased risk for the development of deep vein thromboses was common knowledge within the medical community in August of 2002.”
Third, defendant again contended the prescribing physician did not rely upon its allegedly deficient warning. It offered a new declaration from the physician stating she was now “certain” she did not read the package insert or rely on any information provided by defendant.
Plaintiff opposed the motion. First, she contended a factual issue existed about the physician’s knowledge of the risk of pulmonary embolism from oral contraceptives or long-haul flights. But plaintiff presented no contrary evidence as to the physician’s knowledge. Second, she claimed defendant had a duty to warn precisely because the medical community knew the risk of pulmonary embolism from long-haul flights. Third, she contended the physician’s contradictory statements in her new declaration “itself creates a triable issue of fact....”
Plaintiff also moved to strike the second summary judgment motion as a repeated motion on the same issue without new facts or law. (See Code Civ. Proc., § 437c, subd. (f)(2).) The court did not abuse its discretion in denying the motion to strike. Both summary judgment motions involved causation “in a general sense,” but they “were not identical and involved different legal theories.” (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 827 [allowing two summary judgment motions challenging the element of duty in different ways].)
The court granted the motion. Its minute order stated: “Plaintiff cannot establish proximate cause as to [defendant] because [the physician] testified that she was aware of the risk of emboli associated w/the prescription of birth control pills.... Additionally, Defendant... carried its initial burden that the risk of pulmonary embolism and taking a long flight is common knowledge in the medical community.... Plaintiff presented no evidence creating a triable issue of fact that the risk of pulmonary embolism in regards to long flights was a known risk in the medical community by 1992.” It entered judgment accordingly.
DISCUSSION
“To obtain summary judgment, defendant must show plaintiff[] cannot establish an element of [her] causes of action, or show a complete defense thereto. [Citation.] It bears the burden to ‘make a prima facie showing of the nonexistence of any triable issue of material fact.’ [Citation.] If defendant makes this showing, plaintiff[] must show some triable issue of material fact does exist.” (Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635 (Trujillo).) “On appeal, ‘we must independently examine the record to determine whether triable issues of material fact exist.’” (Ibid.)
“Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. [Citation.] The requirement’s purpose is to inform consumers about a product’s hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use. [Citation.] Typically, under California law, we hold manufacturers strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 (Johnson).)
“[I]n the case of prescription drugs, the duty to warn runs to the physician, not to the patient. [Citations.] Thus, a pharmaceutical manufacturer may not be required to provide warning of a risk known to the medical community.” (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1116 (Carlin) [explaining why extending strict liability to drug manufacturers for failure to warn will not inundate consumers with warnings].) “[I]f the risk of death from untreated infection is universally known in the medical profession, the failure to warn the physician of that risk cannot be the legal cause of the decedent’s death.” (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 (Plenger).) Similarly, if the “physician already knew of the danger... no harm could have been caused by failure to warn of a risk already known.” (Rosburg v. Minnesota Mining & Mfg. Co. (1986) 181 Cal.App.3d 726, 735 (Rosburg).)
(Cf. Johnson, supra, 43 Cal.4th at p. 65 [“Under the sophisticated user defense, sophisticated users need not be warned about dangers of which they are already aware or should be aware”].)
The analysis in Plenger provides guidance. The court affirmed summary judgment for an intrauterine device [(IUD)] manufacturer sued for product liability after the decedent died from a pelvic infection. (Plenger, supra, 11 Cal.App.4th at p. 352.) The manufacturer had offered “its physician package insert which advised of the risk of pelvic infection” (id. at p. 361) and an expert opinion that “the risk of pelvic infection from the insertion of an IUD was well known in the medical community.” (Id. at p. 362.) The plaintiffs offered an expert opinion that the warnings were still “inadequate because they did not specifically advise of the risk of death which can result from a pelvic infection.” (Ibid.) The court noted, “Were this all the evidence presented, we would be inclined to agree with plaintiffs’ contention that a triable issue of fact exists.” (Ibid.) But the manufacturer offered other expert opinions “that the risk of death from any untreated infection was a matter of general and elemental medical knowledge.” (Ibid.)
The manufacturer in Plenger was entitled to summary judgment because it showed the undisclosed risk of death was ascertainable to the medical community. Physicians already knew IUDs could cause pelvic infections. (Plenger, supra, 11 Cal.App.4th at p. 362.) And they knew untreated pelvic infections could cause death. (Ibid.) No triable issue existed as to the medical community’s ability to conclude IUDs posed a risk of death through untreated pelvic infections. “We are aware of no authority which requires a manufacturer to warn of a risk which is readily known and apparent to the consumer, in this case the physician. Further, if the risk of death from untreated infection is universally known in the medical profession, the failure to warn the physician of that risk cannot be the legal cause of the decedent’s death.” (Ibid.)
Here, as in Plenger, no triable issue exists as to causation. Allegedly inadequate drug warnings cannot be the legal cause of injury when the undisclosed risks are already known, either by the prescribing physician personally (Rosburg, supra, 181 Cal.App.3d at p. 735) or to the medical profession generally (Plenger, supra, 11 Cal.App.4th at p. 362; accord Carlin, supra, 13 Cal.4th at p. 1116). Defendant’s evidence sufficiently showed no triable issues existed that (1) the physician already knew the increased risk of clots, deep vein thromboses, and pulmonary emboli from oral contraceptives, and (2) the medical profession had “common knowledge” about the increased risk of deep vein thrombosis from long-haul flights. Plaintiff failed to offer evidence to the contrary. She offered no evidence the physician did not already know the increased risk of deep vein thrombosis from either oral contraceptives or long-haul flights.
Plaintiff unpersuasively contends she had no evidentiary burden. She asserts defendant failed to show there was no “heightened risk” of pulmonary embolism from the combination of taking Kariva on a long-haul flight. Plaintiff states the combined risk may or may not have been “‘doubled,’” and “it could be that there was some exponential risk, such that the combined risk was greater than the sum of the two.” But plaintiff concedes “[t]he record does not make it clear what that combined risk may be.” That void in the record dooms her complaint.
Defendant’s initial burden was only “to ‘make a prima facie showing of the nonexistence of any triable issue of material fact.’” (Trujillo, supra, 157 Cal.App.4th at p. 635.) Defendant did so by showing the physician already knew the increased risks of deep vein thrombosis from both oral contraceptives and long-haul flights. This evidence shifted the burden to plaintiff to “show some triable issue of material fact does exist.” (Ibid.) “To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.’” (Ibid.) Thus, plaintiff’s unsupported theory of a “‘doubled’” or “exponential” risk from combining Kariva and long-haul flight is insufficient to avoid summary judgment. Moreover, plaintiff did not allege any such doubled or exponential risk in her complaint, which alludes to long-haul flight only by noting her daughter died in India. “‘The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Plaintiff cannot escape her evidentiary burden on summary judgment by complaining defendant failed to rebut a theory she never pleaded.
Plaintiff’s other response is to nitpick Carlin, in which our high court extended strict liability for failure to warn to drug manufacturers. (See Carlin, supra, 13 Cal.4th at p. 1108.) She raises three main points. First, she contends the phrase, “a pharmaceutical manufacturer may not be required to provide warning of a risk known to the medical community” (id. at p. 1116, italics added), implies a manufacturer may be required to provide such a warning. Second, she asserts Carlin is wrong on the law because a warning from a drug manufacturer may have more authority than a warning already known from another source. Third, she claims Carlin is internally inconsistent because it requires drug manufacturers to warn only about risks that are “reasonably scientifically knowable” (id. at p. 1114), while excusing them from warning about “a risk known to the medical community” (id. at p. 1116).
None of her Carlin criticisms have merit. Her first point twists the English language beyond the breaking point. “May not” does not imply “may.” Her second point overlooks the limit of our authority. We may not — cannot — second-guess Supreme Court precedent. Her third point is too clever by half. Certain risks may be known or reasonably knowable to drug manufacturers, but not known to the prescribing physician or the medical profession. Drug manufacturers must warn about these risks. (Carlin, supra, 13 Cal.4th at p. 1114.) But their failure to warn about already-known risks cannot be the legal cause of ensuing injury. (Id. at p. 1116.) By showing this principle applies here on the undisputed facts, defendant is entitled to summary judgment.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
WE CONCUR: ARONSON, ACTING P. J., FYBEL, J.