Clark v. Baxter Healthcare Corp.9/26/2000
As modified October 20, 2000. There is no change in judgment. The petition for rehearing is denied.
KRISTEN CLARK, PLAINTIFF AND APPELLANT,
v.
BAXTER HEALTHCARE CORPORATION ET AL., DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. 696529)
Rose, Klein & Marias, David A. Rosen, Arlyn M. Latin, Peter H. Crossin and Tamara M. Heathcote for Plaintiff and Appellant. Crosby, Heafey, Roach & May, James M. Wood, James C. Martin, Marilyn A. Moberg and Lisa M. Baird for Defendants and Respondents Baxter Healthcare Corporation and Baxter International, Inc. Wilson, Petty, Kosmo & Turner, Regina A. Petty, Frederick W. Kosmo, Jr., Theresa O. Stevenson; Kelley Drye & Warren, John Dames and Stephen A. Wood for Defendant and Respondent Johnson & Johnson Medical. Seyfarth, Shaw, Fairweather & Geraldson, Robert M. Mitchell and Lawrence E. Butler for Defendant and Respondent Baxter Healthcare Corporation. Wingert, Grebing, Anello & Brubaker, Alan K. Brubaker; Haight, Brown & Bonesteel, Mario Horwitz; Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, Barry M. Epstein, Beth S. Rose and Stuart M. Feinblatt for Defendants and Respondents Becton, Dickinson and Company and Maxxim Medical, Inc. Prindle, Decker & Amaro, Kenneth B. Prindle, Monte H. Machit and Grace C. Mori for Defendant and Respondent General Medical Corporation. Waters, McClusky & Boehle and Kevin G. McCluskey for Defendant and Respondent Professional Hospital Supply. Ropers, Majeski, Kohn & Bentley and Robert S. Luft for Defendant and Respondent Kendall Co. Sarrail, Lynch & Hall, James A. Sarrail, Michael J. Ruggles; Segal McCambridge Singer & Mahoney, Jeffrey Singer and Robert E. O'Malley for Defendant and Respondent Safeskin Corporation. Jedeikin Meadows & Schneider, Joseph Jedeikin, Curtis Ogilvie, Steven Spaulding; LeClair Ryan and William W. Belt, Jr., for Defendants and Respondents Owens & Minor, Inc., and Stuart Medical, Inc.
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of San Diego County, William C. Pate, Judge. Reversed.
In this products liability action, plaintiff Kirsten Clark appeals a summary judgment in favor of four manufacturer/ distributor defendants who produced and supplied latex gloves that she used in the course of her employment as a nurse, and that caused her to experience allergic reactions. The moving defendants were Baxter International and Becton, Dickinson & Company, joined by Johnson & Johnson Medical and General Medical Corporation (collectively Defendants). The trial court handling this coordinated litigation heard this motion dealing with the facts relating to Clark, individually, and determined her complaint was not filed within the one-year limitation period governing claims for personal injury . (Code Civ. Proc., ยง 340, subd. (3).)
Based on the limitations analyses set forth in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 (Jolly) and Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 (Norgart), we determine that triable material issues of fact exist as to whether Clark's complaint was timely filed, based on the nature of the allergic reactions she suffered from exposure to the substance of latex in the form of gloves, and whether this constituted the required facts and circumstances to put her on inquiry notice of a potential manufacturing or design defect (or an actionable failure to warn or negligence), that existed in gloves manufactured from that sub
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