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Friedman v. Merck & Co.3/26/2003
CERTIFIED FOR PUBLICATION
I. INTRODUCTION
Plaintiff, Jerold Daniel Friedman, appeals from a judgment, following the sustaining of demurrers without leave to amend, in favor of defendants, Merck & Co., Inc., Merck Ventures, Inc., Astra Merck, Inc., and Merck Hamilton, Inc. Plaintiff, a strict ethical vegan, alleged he suffered serious emotional, and subsequent physical, injuries when he discovered a tuberculosis (TB) test he had submitted to contained animal products. He further alleged defendants, the distributors of the TB test, negligently misrepresented, upon inquiry, that the test did not contain animal products and was "Vegan `safe'" and "Vegan `friendly.'" We conclude plaintiff has not stated a cause of action for: negligence; negligent infliction of emotional distress; or negligent misrepresentation. Accordingly, we affirm the judgment.
II. BACKGROUND
A. The Second and Third Amended Complaints' Allegations
Plaintiff alleged: he is a strict ethical vegan; he fervently believes it is immoral and unethical to kill or exploit animals for any purpose; and " e lives each aspect of his life" accordingly. He applied for a position with Southern California Permanente Medical Group. He was required, as a condition of the offered employment, to undergo a TB test. Plaintiff spoke with an employee of Southern California Permanente Medical Group. Plaintiff said that he was an ethical vegan who could not submit to the test if it resulted from the use of animal products or testing. An employee of Southern California Permanente Medical Group then in turn inquired of defendants as to whether there were animal products in the TB test. Defendants in turn advised the Southern California Permanente Medical Group employee that the TB test was "Vegan `safe'" and "Vegan `friendly.'" The Southern California Permanente Medical Group employee then repeated defendants' representations to plaintiff.
In his negligence cause of action, plaintiff asserted defendants negligently advised the Southern California Permanente Medical Group employee the TB test was "Vegan `safe'" and "Vegan `friendly.'" In fact, the TB test contained animal products. Plaintiff alleged: defendants should have known the TB test was not "`Vegan `safe'" and "Vegan `friendly'"; he submitted to the TB test in reliance on defendants' assurances; and he subsequently learned the TB test involved injecting him with bovine (cow) serum. As a result, it was alleged, "[Plaintiff sustained] injuries, including, but not limited to, injuries to his body, physical health, strength and activity and shock and injuries to his nervous system, and has also suffered and continues to suffer severe physical and mental pain and anguish in connection therewith, all of which have caused and continue to cause great mental, physical, spiritual, emotional and nervous pain and suffering."
In his negligent infliction of emotional distress cause of action, plaintiff alleged: "Defendants breached their duties . . . to provide him with a screening test that only had the ingredients represented by the efendants and . . . to advise [him, his employer, or his doctors] with a correct listing of the ingredients of same. The list of ingredients that the efendants . . . provided . . . , knowing the list would be passed along . . . to the laintiff and other egans, was incorrect and incomplete." Plaintiff further alleged defendants knew or should have known their conduct would cause him to suffer extreme emotional distress. Plaintiff alleged, "As a proximate result of efendants' negligent conduct, laintiff suffered and will continue to suffer extreme humiliation, embarrassment, mental anguish and emotional
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