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This case was last updated from Los Angeles County Superior Courts on 07/07/2019 at 14:04:02 (UTC).

CHARLES AN ET AL VS SK CHEMICALS ET AL

Case Summary

On 01/13/2015 CHARLES AN filed a Personal Injury - Other Product Liability lawsuit against SK CHEMICALS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH ALLEN WHITE, MICHAEL P. LINFIELD and TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9190

  • Filing Date:

    01/13/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIZABETH ALLEN WHITE

MICHAEL P. LINFIELD

TERESA A. BEAUDET

 

Party Details

Plaintiffs

AN CHARLES

AN THOMAS

ESTATE OF SUNJA AN

Defendants, Cross Defendants and Cross Plaintiffs

DOES 1 THROUGH 200

KIM'S HOME CENTER INC.

SK CHEMICAL AMERICA INC.

SK CHEMICALS

SK CHEMICALS AMERICA INC.

SK CHEMICALS CO. LTD.

SK U.S.A. INC.

SK USA INC.

JAYONE FOODS INC. [DOE 3]

JAYONE HOMEWARE INC. [DOE 4]

JAYONE FOODS INC.

JAYONE HOMEWARE INC.

WOOSUNG AMERICA CORPORATION

AEKYUNG INDUSTRIAL CO. LTD.

AEKYUNG S.T. CO. LTD.

FOOD CHEONG JUNG NA RU

3 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

PETER RASLA & ASSOCIATES PLC

RASLA PETER

Defendant and Cross Plaintiff Attorneys

COVINGTON & BURLING LLP

LEWIS BRISBOIS BISGAARD & SMITH LLP

MURCHISON & CUMMING LLP

POOLE & SHAFFERY LLP

SHAFFERY JOHN H.

SHIN CLARA J.

POWELL GLEN R.

LEAVITT SCOTT M.

GRUPPIE GUY R.

SCULLY MILES D.

Cross Defendant Attorneys

SHAFROTH NATHNA E.

KRITENBRINK JAMES

PEROVICH STEFAN

PARK JANE H.

Other Attorneys

SHAFROTH NATHAN E.

 

Court Documents

Minute Order

4/8/2019: Minute Order

Answer

5/13/2019: Answer

SUMMONS

1/13/2015: SUMMONS

NOTICE OF CASE MANAGEMENT CONFERENCE

8/7/2015: NOTICE OF CASE MANAGEMENT CONFERENCE

PLAINTIFFS' OPPOSITION TO DEFENDANT'S SK CHEMICALS CO. LTD., AND SK USA, INC. MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION AND PLAINTIFF'S REQUEST FOR CONTINUANCE OF HEARING AND AN ORDER ALLOWING

9/21/2015: PLAINTIFFS' OPPOSITION TO DEFENDANT'S SK CHEMICALS CO. LTD., AND SK USA, INC. MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION AND PLAINTIFF'S REQUEST FOR CONTINUANCE OF HEARING AND AN ORDER ALLOWING

ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS OF SPECIALLY-APPEARING DEFENDANTS SK CHEMICALS CO., LTD. AND SK USA, INC. FOR LACK OF PERSONAL JURISDICTION

10/15/2015: ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS OF SPECIALLY-APPEARING DEFENDANTS SK CHEMICALS CO., LTD. AND SK USA, INC. FOR LACK OF PERSONAL JURISDICTION

PROOF OF SERVICE OF SUMMONS

10/27/2015: PROOF OF SERVICE OF SUMMONS

Minute Order

12/28/2015: Minute Order

STIPULATION AND ORDER DEFENDANT TO STRIKE PUNITIVE DAMAGES PRAYER FROM SECOND AMENDED COMPLAINT AS TO JAYONE FOODS, INC.

1/5/2016: STIPULATION AND ORDER DEFENDANT TO STRIKE PUNITIVE DAMAGES PRAYER FROM SECOND AMENDED COMPLAINT AS TO JAYONE FOODS, INC.

Minute Order

2/3/2016: Minute Order

CASE MANAGEMENT STATEMENT

3/24/2016: CASE MANAGEMENT STATEMENT

CERTIFICATE (PROOF OF SERVICE FOR THE HAGUE CONVENTION) SERVING CROSS-COMPLAINT ON SK CHEMICALS CO., LTD

5/18/2016: CERTIFICATE (PROOF OF SERVICE FOR THE HAGUE CONVENTION) SERVING CROSS-COMPLAINT ON SK CHEMICALS CO., LTD

CASE MANAGEMENT STATEMENT

2/14/2017: CASE MANAGEMENT STATEMENT

CASE MANAGEMENT STATEMENT

2/17/2017: CASE MANAGEMENT STATEMENT

CIVIL DEPOSIT

5/5/2017: CIVIL DEPOSIT

CROSS-COMPLAINT BY JAYONE HOMEWARE, INC. FOR COMPARATIVE INDEMNITY AND APPORTIONMENT OF FAULT, TOTAL EQUITABLE INDEMNITY, CONTRIBUTION AND DECLARATORY RELIEF

5/10/2017: CROSS-COMPLAINT BY JAYONE HOMEWARE, INC. FOR COMPARATIVE INDEMNITY AND APPORTIONMENT OF FAULT, TOTAL EQUITABLE INDEMNITY, CONTRIBUTION AND DECLARATORY RELIEF

STIPULATION AND ORDER STAYING THE ACTION PENDING APPEAL OF ORDER GRANTING AEKYUNG INDUSTRIAL CO., LTD'S MOTION TO QUASH

5/11/2017: STIPULATION AND ORDER STAYING THE ACTION PENDING APPEAL OF ORDER GRANTING AEKYUNG INDUSTRIAL CO., LTD'S MOTION TO QUASH

APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

5/26/2017: APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

198 More Documents Available

 

Docket Entries

  • 06/28/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to be Admitted Pro Hac Vice - Not Held - Rescheduled by Party

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  • 06/26/2019
  • Notice ( to Continue Hearing on Motion to be Admitted Pro Hac Vice); Filed by Jayone Homeware, Inc. (Defendant)

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  • 06/18/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to be Admitted Pro Hac Vice - Held - Continued

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  • 06/18/2019
  • Answer (of Cross-Def Aekyung Industrial Co., LTD to Cross-Complaint of Cross-Def/Cross-Complainant Woosung America Corporation); Filed by Aekyung Industrial Co., Ltd. (Cross-Defendant)

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  • 06/18/2019
  • Certificate of Mailing for (Minute Order (Hearing on Application of Jane H. Park to be Appear Pro Hac V...) of 06/18/2019 and Ruling: Application for Admission Pro Hac Vice); Filed by Clerk

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  • 06/18/2019
  • Minute Order ( (Hearing on Application of Jane H. Park to be Appear Pro Hac V...)); Filed by Clerk

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  • 06/18/2019
  • Order (Ruling: Application for Admission Pro Hac Vice); Filed by Clerk

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  • 06/05/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to be Admitted Pro Hac Vice - Not Held - Rescheduled by Party

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  • 06/03/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Trial Setting Conference - Held

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  • 06/03/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Status Conference - Held

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433 More Docket Entries
  • 03/09/2015
  • Demurrer; Filed by Kim's Home Center, Inc. (Defendant)

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  • 03/09/2015
  • Motion to Strike; Filed by Kim's Home Center, Inc. (Defendant)

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  • 03/09/2015
  • First Amended Complaint; Filed by Charles An (Plaintiff); Thomas An (Plaintiff); Estate of Sunja An (Plaintiff)

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  • 03/09/2015
  • FIRST AMENDED COMPLATNT FOR: 1. NEGLIGENCE - WRONGFUL DEATH 2. GROSS NEGLIGENCE - WRONGFUL DEATH 3. STRICT PRODUCTS LIABILITYWRONGFUL DEATH 4. NEGLIGENCE - SURVIVOR ACTION 5. GROSS NEGLIGENCE - SURVIVOR ACTION 6. STRICT PRODUCTS LIABILITY - SURVIVOR ACTIO

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  • 03/09/2015
  • First Amended Complaint for: 1. Negligence - Wrongful Death 2. Gross Negligence - Wrongful Death 3. Strict Products Liability - Wrongful Death 4. Negligence - Survivor Action 5. Gross Negligence - Survivor Action 6. Strict Products Liability - etc.; Filed by Charles An (Plaintiff); Thomas An (Plaintiff); Estate of Sunja An (Plaintiff)

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  • 03/09/2015
  • NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

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  • 03/09/2015
  • NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

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  • 01/13/2015
  • Complaint; Filed by Charles An (Plaintiff); Thomas An (Plaintiff); Estate of Sunja An (Plaintiff)

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  • 01/13/2015
  • SUMMONS

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  • 01/13/2015
  • COMPLAINT FOR: 1. NEGLIGENCE - WRONGFUL DEATH; ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC569190    Hearing Date: January 05, 2021    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

On September 23, 2019, Plaintiffs Charles An, Thomas An, and Charles An as personal representative of the Estate of Sunja An (collectively, “Plaintiffs”) filed their third amended complaint (“TAC”) against Defendants Aekyung Industrial Co., Ltd. (“Aekyung”), Jayone Foods, Inc. (“Jayone Foods”), Jayone Homeware, Inc. (“Jayone Homeware”), and Woosung America Corporation. Plaintiffs settled their claims against Woosung America Corporation.

On September 2, 2020, Jayone Homeware filed a motion for summary judgment, or in the alternative, summary adjudication. On September 14, 2020, after paying its own summary judgment filing fee, Aekyung joined the motion and filed its separate statement and evidence. Plaintiffs and Jayone Homeware later settled their claims, and Jayone Homeware took its motion off calendar. Aekyung’s joinder remained on calendar.

EVIDENTIARY OBJECTIONS

Plaintiffs’ Objection No. 1 is overruled. The Court did not rely on Exhibit 2 to the Kritenbrink Declaration.

Aekyung’s objections to the Declaration of Stewart A. Lonky, M.D., F.A.C.P. are overruled.

BACKGROUND FACTS

Plaintiffs allege that Sunja An (“An”) started using Aekyung Humidifier Mate sometime in 2005. (Jayone Homeware Undisputed Material Facts “JHUMF” 8; Aekyung Undisputed Material Facts “AUMF” 8.) Aekyung distributed Humidifier Mate in the United States between 2005 and 2007. (AUMF 7.) Jayone Homeware distributed Humidifier Mate to Kim’s Home Center between June 6, 2006 and November 12, 2007. (JHUMF 7.)

An had a chest x-ray in August 2002 with a documented impression of nonspecific left lung interstitial infiltrates. (JHUMF 10; AUMF 10.) While undergoing treatment at UCLA in November 2011, blood tests performed on An did not detect any abnormal levels of antibodies that would support a finding of Hypersensitive Pneumonitis or a finding of allergens. (JHUMF 11; AUMF 11.) An was diagnosed with idiopathic pulmonary fibrosis in 2012. (JHUMF 1, 12; AUMF 1, 12.) Charles An testified that he believed An last used Humidifier Mate in 2012 or 2013. (JHUMF 9; AUMF 9.) An died on February 11, 2013, with her cause of death determined as Respiratory Depression and Idiopathic Pulmonary Fibrosis. (JHUMF 2, 13; AUMF 2, 13.)

LEGAL STANDARD

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

DISCUSSION

The TAC alleges six causes of action: (1) wrongful death – negligence; (2) wrongful death – strict products liability; (3) negligence; (4) strict products liability – design defect and/or failure to warn; (5) breach of implied warranty; and (6) punitive damages. Plaintiffs allege that An’s medical conditions – Respiratory Depression and Idiopathic Pulmonary Fibrosis – were caused by the Humidifier Mate, which contained toxic chemicals and did not have adequate warnings or instructions regarding its dangerous characteristics and active ingredient. (JHUMF 2-4; AUMF 3, 4.) The first five causes of action are asserted against all Defendants, and the request for punitive damages is asserted against only Aekyung. Aekyung contends Plaintiffs cannot establish that the Humidifier Mate was a substantial factor in causing An’s death. Jayone Homeware filed, and Aekyung relies upon, the declarations of Andrew Wachtel, M.D. and Howard M. Sandler, M.D.

A plaintiff alleging injury caused by a toxic chemical must “establish in reasonable medical probability that the exposure to [the chemical] was a ‘legal cause’ of [the plaintiff’s] injury, i.e., a substantial factor in bringing about the injury.” (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 673.) “The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978.) “ ‘Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical “probability” and a medical “possibility” needs little discussion. There can be many possible “causes,” indeed an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its actions. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]’ [Citation.]” (Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal.App.4th 1326, 1336.)

Wachtel set forth his education and stated that he is triple Board-certified in internal medicine, pulmonary diseases, and critical care medicine and has been practicing as a pulmonary critical care specialist for over 20 years. (Wachtel Decl. ¶ 2.) Wachtel has shown he is competent to testify about these matters. Wachtel reviewed An’s medical records, the deposition testimony of Plaintiffs Thomas An and Charles An, interrogatories, the TAC, and medical and scientific literature produced by Plaintiffs and Aekyung. (Id. at ¶¶ 3, 10.) Based on his education, training, background, experience, and review of these records, he concluded An’s fatal injuries were likely caused by her pre-existing interstitial lung disease she had since 2002. (Wachtel Decl. ¶¶ 11-12.) The product could not have caused her injuries because she had evidence of interstitial lung disease in 2002 and was first exposed to the product in 2005. (Id. at ¶ 15.) Wachtel explained An’s “open lung biopsy report, radiographic abnormalities and described injuries are different than those injuries suffered by people who claim to have had pulmonary fibrosis caused by inhaling CMIT/MIT from Korean humidifier disinfectants.” (Id. at ¶ 13.) Her physical examination in 2012 included clubbing of her fingers, which is a characteristic finding of Idiopathic Pulmonary Fibrosis of the UIP type and is not reported in cases of the Korean humidifier disinfectants. (Id. at ¶ 14.) An was first noted to have radiographic interstitial lung disease in 2002 and she survived until 2013, which is highly inconsistent with the progression of the Korean humidifier lung disease. (Id. at ¶ 16.) Wachtel therefore concluded to a reasonable degree of medical certainty that An’s alleged exposure to Humidifier Mate did not cause the injuries that she succumbed to. (Id. at ¶ 17.)

Sandler set forth his training in occupational and environmental medicine, including principles and practices of toxicology, epidemiology, industrial hygiene, and occupational and environmental medicine. (Sandler Decl. ¶¶ 1-4.) He has taught and lectured on causation determination and has “been involved with numerous cases of idiopathic (unknown cause) pulmonary fibrosis.” (Id. at ¶¶ 2, 4.) Sandler has shown that he is competent to testify about pulmonary fibrosis and causation. Sandler reviewed An’s medical records, Plaintiffs’ discovery responses, the TAC, the Humidifier Mate product label, deposition transcripts, Material Safety Data Sheets produced by Aekyung, Plaintiffs’ declaration in opposition to Defendants’ prior motion for summary judgment, Plaintiffs’ opposition and evidentiary objections to Defendants’ prior motion for summary judgment, and the 2011 Korean Center for Disease Control Cell Toxicity test on CMIT/MIT. (Id. at ¶¶ 5-6.)

Sandler explained how a general causal determination is reached among epidemiologists. (Id. at ¶ 9.) After a comprehensive medical/scientific literature search, critique, and analysis regarding the association between humidifier disinfectant exposure and the development of interstitial pulmonary fibrosis, Sandler found a limited number of case reports, case series, and case-control studies beginning in 2010. (Id. at ¶ 10.) Virtually all of the studies examined other humidifier disinfectants that did not contain the active ingredients in Aekyung Humidifier Mate (CMIT and MIT), and Aekyung Humidifier Mate’s active ingredients “have still not been causally associated with interstitial pulmonary fibrosis using appropriate and accepted casual determination methodology.” (Id. at ¶ 11.) Sandler noted studies showed that CMIT and MIT could cause interstitial pulmonary fibrosis in children. (Ibid.) He also stated the products that the Korean government removed from commerce in 2011 did not contain CMIT or MIT. (Id. at ¶ 12.) Sandler further performed a comprehensive medical/scientific literature search, critique, and analysis regarding pine scent and the development of interstitial pulmonary fibrosis and hypersensitivity pneumonitis, and he could not find any literature supporting an association between them. (Id. at ¶ 13.) Additionally, scientific literature “only documents less than 30 adults exposed to HDs as having developed [interstitial pulmonary fibrosis] and approximately half of them were pregnant,” and “individuals who developed [interstitial pulmonary fibrosis] were still using the [humidifier disinfectant] or had been recently using the product.” (Id. at ¶ 14.)

According to Sandler, “An’s case does not the meet the individual causation criteria” because she was elderly, which has not been causally determined to be related to humidifier disinfectant exposure and does not meet the clinical profile established in the general causation literature. (Id. at ¶ 18.) Her timing/latency requirement also has not been met because she did not develop interstitial pulmonary fibrosis until 2010, three years after the store where she or her son had purchased the product had stopped selling Aekyung Humidifier Mate. (Ibid.) According to Sandler, An’s more likely diagnosis is idiopathic pulmonary fibrosis, which comprises over half of the cases of interstitial pulmonary fibrosis and from which most people die within three to five years after diagnosis. (Id. at ¶ 19.)

Defendants met their initial burden of showing Plaintiffs cannot establish that An’s death was caused by the Humidifier Mate. The burden thus shifts to Plaintiffs to show the existence of a triable issue of material fact.

Plaintiffs relies on two declarations of Stewart A. Lonky, M.D., F.A.C.P. Lonky set forth his education and training in internal medicine, pulmonary medicine, and critical care medicine, including cases of pulmonary fibrosis. (Dec. 2020 Lonky Decl. ¶¶ 1-7.) Lonky reviewed Defendants’ experts’ declarations, discovery responses, various research and clinical articles sent by Plaintiffs’ counsel, other articles, An’s medical records, portions of the transcript from Charles An’s deposition, and Sandler’s declaration. (Id. at ¶ 8.)

In his July 20, 2020 declaration, Lonky concluded that the 2002 x-ray did not show early interstitial fibrosis. (July 2020 Lonky Decl. ¶ 15.) He stated, “There is no question that there is a concern regarding the possibility that the humidifier disinfectants that were first noted to cause problems in Korea, may have played a role in the development of interstitial lung disease in Mrs. An.” (Id. at ¶ 17.) He pointed to two 2014 articles discussing pregnant patients who developed interstitial lung disease upon exposure to humidifiers and disinfectants, but also noted “no mention was made regarding the specific agent that was causative. (Id. at ¶ ¶ 18, 19, 21.) He also described a 2019 article about interstitial lung disease in children, where the toxic chemicals in the humidifier disinfectants included, PHMG, OGH, CMIT and MIT, with CMIT/MIT being the least commonly used. (Id. at ¶ 22.) He stated this “certainly does not dismiss the role of CMIT and MIT as being potentially causative agents.” (Ibid.) The “study pointed out that there is a paucity of information regarding CMIT and MIT, but in real clinical situations, interstitial lung disease had occurred after exposure to both of these agents (CMIT and MIT).” (Id. at ¶ 23.) Lonky also discussed reports about the toxicity of CMIT and MIT including on skin (id. at ¶¶ 26, 27), but he did not state that those reports concerned CMIT and MIT in humidifiers or how the all of the exposures to the chemicals occurred.

As noted above, Lonky opined disinfectants “may” cause interstitial lung disease, he cannot “dismiss the role of CMIT and MIT,” “there is paucity of information regarding CMIT and MIT,” and the disease occurred after exposure to CMIT and MIT. (July 2020 Lonky Decl. ¶¶ 17, 22, 23.) This is not sufficient to establish a medical probability of causation. By definition, a possibility is not a probability. (Miranda, supra, 187 Cal.App.4th at p. 1336.) And the fact that the disease occurred after exposure is “ ‘the logical fallacy of “post hoc, ergo propter hoc” (after the fact, therefore because of the fact’. [Citation.]” (Id. at p. 1339.)

Lonky concluded “it is reasonably medically probable that the exposure to CMIT and MIT satisfies at least two criteria that we look for in the development of hypersensitivity pneumonia.” (July 2020 Lonky Decl. ¶ 28.) But that conclusion does not state there is a reasonably medical probability that the use of CMIT and MIT in humidifiers caused An’s interstitial lung fibrosis, and such a conclusion would not be adequately supported by the studies Lonky described.

Lonky next discussed the pine needle extract in the disinfectant. Literature shows pine needle extracts are allergenic and can cause an asthmatic reaction. (July 2020 Lonky Decl. ¶ 30.) “Cellular responses, inflammatory changes, and bronchial disruption are hallmarks of exposure to these agents.” (Ibid.) The CMIT and MIT in the disinfectant “could well have been ‘magnified’ secondary to the simultaneous exposure to a known ‘sensitizer.’” (Id. at ¶ 31.) In his December 2020 declaration, Lonky explained pine needle extract “can ‘prime’ airways cells capable of an immune response, which may make them more receptive to the level of immune induction of compounds such as MIT and CMIT.” (Dec. 2020 Decl. ¶ 24.) The pine scent and pine needle extract are “possible ‘co-factors’ in the induction of an immune response in the airways, making it easier for a chemical compound like MIT and CMIT to exert their effects.” (Ibid.) Again, this language – “could well have been,” “may make them receptive,” “possible ‘co-factors’” – is tentative and at most establishes a possibility the pine needle extract contributed to the effect of CMIT and MIT. A possibility is not a probability.

In his December 2020 declaration, Lonky argued that the “paucity of data in the world’s literature regarding the effects of CMIT and MIT in the direct causation of pulmonary injury” means a strict criteria of causation should not be used. (Dec. 2020 Lonky Decl. ¶ 16.) Rather, than starting with the well-accepted academic literature, Lonky believes the analysis should start with “the patient as the focal point and the pathology that was disclosed as well as the clinical course and radiologic findings.” (Id. at ¶¶ 18, 19.) He advocated for a “more clinical and pragmatic approach to the problem.” (Id. at ¶ 19.) He stated that using the accepted, established scientific methodology to determine the evidence of a causal nexus” is “not a requirement in cases such as Ms. An’s where we are dealing with a lack of sufficient scientific data, and only case reports and a few correlative studies between exposures to products containing MIT and MIT in the development of fibrotic lung disease.” (Id. at ¶ 33.) He concluded An became ill because she inhaled some chemical, not because of idiopathic pulmonary fibrosis (id. ¶¶ 36-37), and “[o]f the chemicals she was exposed to, that [he has] been informed of, CIT and CMIT fall into the category of ‘believable and reasonable’ explanations for the development of interstitial lung disease.” (Id. at ¶ 36.)

Whether the starting point is the patient or the academic literature, Plaintiff must still prove a reasonable medical probability that the humidifier disinfectant caused An’s interstitial lung fibrosis. “The fact that a determination of cause is difficult to establish cannot, however, provide a plaintiff with an excuse to dispense with the introduction of some reasonably reliable evidence proving this essential element of his case.” (Jones v. Ortho Pharmaceutical Corp. 163 Cal.App.3d 396, 403.) “Mere possibility alone is insufficient to establish a prima facie case.” (Id. at p. 402.) In Jones, the plaintiff’s expert testified there was a “reasonable medical possibility” the drug contributed to the cancer. (Id. at p. 401.) The other expert testified the drug “may have been a contributing factor” causing the cancer. (Ibid.) The court concluded the testimony that “ingestion of the drug may have had some effect on the development or progression of the disease” did not meet “the test of proximate cause.” (Id. at 402.) Sometimes “the proximate cause of plaintiff’s condition remains unknown and unproved.” (Id. at p. 404.)

Similarly, Lonky testifies in terms of possibilities and correlation, as detailed above. While he is more certain that her fibrosis was caused by inhaling a chemical, his evidence and analysis demonstrates, at most, the possibility those chemicals were the CMIT and CIT in the disinfectant. Accordingly, Plaintiffs have not met their burden of showing that there is a triable issue of fact as to whether Defendants’ product was a substantial factor in causing An’s harm.

CONCLUSION

The motion for summary judgment is GRANTED. Aekyung is to submit a proposed form of a judgment within five court days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC569190    Hearing Date: August 03, 2020    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

On September 23, 2019, Plaintiffs Charles An, Thomas An, and Charles An as personal representative of the Estate of Sunja An filed their third amended complaint (“TAC”) against Defendants Aekyung Industrial Co., Ltd. (“Aekyung”), Jayone Foods, Inc. (“Jayone Foods”), Jayone Homewear, Inc. (“Jayone Homewear”), and Woosung America Corporation. Plaintiffs settled their claims against Woosung America Corporation.

Plaintiffs allege that in 2005, Sunja An (“An”) An started to maintain and clean her humidifier with Aekyung Humidifier Mate. (TAC ¶ 10; JFUMF 2.) She was diagnosed with Idiopathic Pulmonary Fibrosis in 2012. (TAC ¶ 14; JHUMF 6.) An passed away on February 11, 2013, with her cause of death determined to be Respiratory Depression and Idiopathic Pulmonary Fibrosis. (TAC ¶ 15; JHUMF 7; JFUMF 6; AUMF 8.) Plaintiffs allege that her death was caused by her use of Aekyung Humidifier Mate, which they allege contains toxic chemicals that caused her Idiopathic Pulmonary Fibrosis. (TAC ¶ 16.)

On May 18, 2020, Jayone Homewear filed a motion for summary judgment, or in the alternative, summary adjudication. On May 19, 2020, Jayone Foods joined the motion and filed its own separate statement and evidence, and on May 20, 2020, Aekyung did the same. Defendants contend Plaintiffs cannot establish that Aekyung Humidifier Mate was a substantial factor in causing An’s death. Defendants also argue Plaintiffs cannot prove liability for a failure to warn because Defendants had no way of knowing that the humidifier disinfectant was dangerous and the technology was the state of the art at the time of distribution.

DISCUSSION

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.)

A key part of any summary judgment motion is the separate statement. “‘Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.’ (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.)” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251-252.) “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]” (Nazir, supra, 178 Cal.App.4th at p. 252.) “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient. ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contest, and where the evidence on each side of the issue is located.’” (United Community Church, supra, 231 Cal.App.3d at p. 335.) “The due process aspect of the separate statement requirement is self-evident, to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.

“[I]n ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving party’s separate statement of undisputed facts.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. 102 Cal.App.4th 308, 315.) “In exercising its discretion whether or not to consider evidence undisclosed in the separate statement, the court should also consider due process implications noted in United Community Church. (Id. at p. 316.)

Defendants’ separate statements are quite brief. Jayone Homeware’s separate statement states An suffered from interstitial lung disease since 2002, she first used the Aekyung Humidifier Mate in September 2005, Jayone Homeware distributed the product between 2006 and 2007, An was diagnosed with Idiopathic Pulmonary Fibrosis in 2012, and she died in 2013 with the immediate cause being respiratory depression and an underlying cause of Idiopathic Pulmonary Fibrosis. This separate statement contains no fact about causation or the state-of-the-art defense.

Jayone Foods separate statement states An started using the product in 2005, An’s son purchased it from Kim’s Home Center, Jayone Foods purchased boxes of the product in 2005-2007 and sold it to Kim’s Home Center in 2005, Jayone Homeware sold it to Kim’s Home Center in 2006 and 2007, An died from respiratory depression and Idiopathic Pulmonary Fibrosis, and Plaintiffs allege her death was caused by the product. Likewise, this separate statement includes no fact about causation or the state-of-the-art defense.

Aekyung’s separate statement states a 2002 chest report of An showed interstitial markings with interstitial lung disease, in 2005 An started using the product purchased from Kim’s Home Center, SK Chemicals made the product, Jayone Foods purchased boxes of the product in 2005-2007 and sold it to Kim’s Home Center in 2005, Jayone Homeware sold it to Kim’s Home Center in 2006 and 2007, An died from respiratory depression and Idiopathic Pulmonary Fibrosis, Plaintiffs allege her death was caused by the product, Plaintiffs originally did not sue Aekyung, Plaintiffs produced four report and only one report related to MIT and CMIT but did not find a link between MIT and CMIT and lung damage, a 2012 study found a link between PHMG and PGH and lung disease, and the product contains CMIT and MIT but not PHMG or PGH.

This last separate statement at least touches on causation issues with its last three facts. But these three facts are not sufficient. Aekyung has the burden to present evidence that, if uncontradicted, “would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 879, 879.) Aekyung could do that by presenting evidence negating as a matter of law an essential element of Plaintiffs’ causes of action. (Guz v. Bechtel Nat’l, Inc. 24 Cal.4th 317, 334.) Or Aekyung could satisfy its burden by presenting evidence that Plaintiffs “do[] not possess and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) These three facts do not establish that Plaintiffs cannot prove causation -- all they establish is that the product contains CMIT and MIT, Plaintiff produced four reports in discovery, and none of the reports found a link between CMIT and MIT and lung damage. These facts say nothing about the existence of any other evidence that Plaintiffs possess or could reasonably obtain, such as other reports, testimony or expert opinions. Nor do the facts establish that as a matter of law, the product at issue could not be the cause of An’s disease.

Jayone Homeware’s memorandum of points and authorities makes a more detailed argument about why the product cannot be the cause of An’s disease, citing extensively to two expert declarations. The memorandum gives the strong impression that the expert declarations are critical to the motion. However, the separate statements do not refer to the expert declarations. For the reasons expressed in the cases cited above, the absence in the separate statements of specific material facts from the experts’ opinions constitutes a failure to inform Plaintiffs of the evidence to be disputed to defeat the motion. Likewise, the failure to specific all the material facts in the separate statements puts the onus on the Court to sort through the expert declarations and evidence on both sides, try to determine which facts are material to Defendants’ case, and then attempt to match those facts with facts submitted by Plaintiffs to see if there is a dispute. The Court declines to do that. (San Diego Watercrafts, supra, 102 Cal.App.4th at 315.)

Because the separate statements do not set forth facts showing that Plaintiffs cannot prove causation and present no facts about the state-of-the-art defense, Defendants have not satisfied their initial burden.

The motion for summary judgment is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

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