Artiglio v. Corning Inc.

MOSK, J.

I dissent.

In this coordinated proceeding, as pertinent here, plaintiffs including Eda Artiglio seek damages in the superior court based on a claim of negligence against defendants including the Dow Chemical Company, Coming Incorporated, and Dow Coming Corporation.

By way of background: Dow Chemical and Corning formed Dow Coming in 1943 to develop and produce silicones, and have owned it in equal shares ever since. Dow Chemical undertook to perform human toxicological research on silicones for biomedical applications on behalf of Dow Corning in 1948, and continued to do so until at least 1959. Dow Chemical’s facilities were located adjacent to those of Dow Coming. Dow Coming designed, manufactured, and sold silicone breast implants in the period from 1961 to 1992. Plaintiffs were recipients of these or similar products, and allegedly suffered injury including physical harm as a result. Dow Coming filed a *619 voluntary petition for reorganization under chapter 11 of the Bankruptcy Code in 1995, and has since enjoyed the benefit of an automatic stay of the commencement or continuation of all actions or proceedings, including this one.

On separate motions by Dow Chemical and Coming, which were opposed by plaintiffs, the superior court granted summary judgment in favor of the former and against the latter, concluding, as a matter of law, that neither Dow Chemical nor Corning owed any duty to plaintiffs. It caused entry of judgment of dismissal, expressly as to Coming, impliedly as to Dow Chemical.

On appeal, the Court of Appeal affirmed. It concluded, as a matter of law, that neither Dow Chemical nor Corning owed any duty to plaintiffs.

On review, which involves Dow Chemical but not Coming, the majority affirm in turn. They conclude, as a matter of law, that Dow Chemical did not owe any duty to plaintiffs.

I would reverse. Unlike my colleagues, I believe that there is at least a triable issue of material fact on the question.

Under the law of negligence of California, Civil Code section 1714, subdivision (a), declares the general principle that “[ejvery one is responsible . . .for an[y] injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .” As to actors, it covers, in terms, “every one”—which embraces all those who perform human toxicological research on substances for biomedical applications, including entities such as Dow Chemical with regard to silicones on Dow Coming’s behalf. As to victims, it covers, by implication, the general class of persons for whose protection the actor in question is required to exercise the demanded care or skill (see Richards v. Stanley (1954) 43 Cal.2d 60, 63 [ 271 P.2d 23 ]; see also Hosking v. San Pedro Marine, Inc. (1979) 98 Cal.App.3d 98, 106 [ 159 Cal.Rptr. 369 ] (cone. opn. of Hanson, J.) [reading Richards in light of Civ. Code, § 1714, subd. (a)])—which embraces all those who are subsequently exposed to any such substances, including plaintiffs who were recipients of Dow Coming silicone breast implants.

Restatement Second of Torts section 324A, which reflects California’s law of negligence, declares a more specific principle, to the effect that “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical *620 harm resulting from his failure to exercise reasonable care to protect [sic: read, apparently, perform] his undertaking, if’ “(a) his failure to exercise reasonable care increases the risk of such harm,” or “(b) he has undertaken to perform a duty owed by the other to the third person,” or “(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” As to actors, it covers, in terms, anyone “who undertakes . . . to render services to another which he should recognize as necessary for the protection of a third person or his things”—which embraces all those who perform human toxicological research on substances for biomedical applications, including entities such as Dow Chemical with regard to silicones on Dow Coming’s behalf. As to victims, it covers, in terms, the general class of persons for whose “protection” the actor in question should recognize his “services” are “necessary”—which embraces all those who are subsequently exposed to any siich substances, including plaintiffs who were recipients of Dow Coming silicone breast implants.

In Rowland v. Christian (1968) 69 Cal.2d 108, 112 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ], we stated: “Although it is tme that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by [Civil Code section 1714, subdivision (a)], no such exception should be made unless clearly supported by public policy.” By parity of reasoning, the same is tme of the more specific principle, which is set out in Restatement Second of Torts section 324A, that a person who undertakes to render services to another that he should recognize as necessary for the protection of a third person or his things may be subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to perform his undertaking.

Inasmuch as those who perform human toxicological research on substances for biomedical applications—including entities such as Dow Chemical with regard to silicones on Dow Coming’s behalf—are not exempted by statutory law from the general principle of Civil Code section 1714, subdivision (a), or even from the more specific principle of Restatement Second of Torts section 324A, they should not be exempted from either one of them by decisional law, because such a result is not clearly supported by public policy. To be sure, any limitation of the “responsibility” or “liability” of such persons and entities under Civil Code section 1714, subdivision (a), or Restatement Second of Torts section 324A, respectively, might perhaps give an incentive to good work, through which many men and women could be helped. But it might also remove a deterrent against bad work, through *621 which many men and women could be hurt. Before a court could reasonably consider any such limitation, it would have to have available for its scrutiny an empirically based cost-benefit analysis. An analysis of this sort, however, is apparently nonexistent.

In concluding that Dow Chemical did not owe a duty to plaintiffs as a matter of law, the majority rely on an assertion that “any risk of physical harm to plaintiffs from” Dow Chemical’s “negligent performance” of human toxicological research on silicones for biomedical applications on behalf of Dow Coming was “unforeseeable.” (Maj. opn., ante, at p. 608.)

When we read the majority’s assertion of the “unforeseeability” by Dow Chemical of “any risk of physical harm” to plaintiffs in the abstract, we find it to be without support. Indeed, reading it thus, we discover that it virtually deconstructs itself. (See maj. opn., ante, at pp. 608-610, 616.) To be brief: From 1948, Dow Chemical foresaw, or at least should have foreseen, a risk of physical harm. For in that year, V.K. Rowe, H.C. Spencer, and S.L. Bass published a seminal report. (Rowe and Spencer were employees of Dow Chemical, Bass of Dow Coming.) Although they concluded that “silicones as a group have a very low order of toxicity,” they did not, and could not, conclude that they had none. At the very outset, they noted that silicones constituted an “unusual and radically different class of . . . substances.” Among the potential hazards threatened by various silicones they listed irritation, inflammation, edema, necrosis, slowed growth, increase in weight of certain internal organs, respiratory failure, and death. From 1950, Dow Chemical foresaw, or at least should have foreseen, a risk of physical harm to plaintiffs. For in that year, R.R. De Nicola published a report on what was apparently the first silicone implant in a human being, specifically, an artificial urethra. In 1953, in response to a request for a silicone implant to serve as an artificial bile duct, Dow Coming “compounded” the first silicones “made specifically for medical use.” And in 1955, J. Holier developed a silicone implant for use as a hydrocephalus shunt—a “significant breakthrough in medical science,” which was widely publicized in the popular press as well as the scientific literature. That Dow Chemical acted without a focus on silicone breast implants does not negate the fact that it acted with a focus on silicone implants. Further, that it acted without awareness of plaintiffs as recipients of silicone breast implants does not negate the fact that it acted with awareness of the general class of persons to which plaintiffs belong, that is, recipients of silicone implants.

When we read the majority’s assertion of the “unforeseeability” by Dow Chemical of “any risk of physical harm” to plaintiffs in its context, we find it to be of no consequence. For reading it thus, we discover that it goes to *622 proximate cause rather than duty. (See maj. opn., ante, at p. 617.) Proximate cause, of course, was not the basis of the superior court’s granting of Dow Chemical’s summary judgment motion, and hence was not the basis of the Court of Appeal’s sustaining of that action. Even if it had been, it could not have survived scrutiny. For it is generally a question that is not amenable to determination on summary judgment. (See, e.g., Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3.d 49, 56 [ 192 Cal.Rptr. 857 , 665 P.2d 947 ].) It is not otherwise here.

In conclusion, because I believe that there is at least a triable issue of material fact whether Dow Chemical owed a duty to plaintiffs, I would reverse the judgment of the Court of Appeal and remand the cause to that court with directions to remand it in turn to the superior court for proceedings not inconsistent with the views that I have expressed herein.