Tanessa Desranleau v. Hyland's, Inc.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TAN ESSA DESRANLEAU, individually and ) No. 78343-2-I
as the Personal Representative of the )
ESTATE of JAY’BREON DESRANLEAU, )
) DIVISION ONE
Appellant,
v. ) PUBLISHED OPINION
HYLAND’S, INC., STANDARD HOMEPATHIC)
LABORATORIES, INC., and STANDARD ) FILED: October 21, 2019
HOMEPATHIC COMPANY, and MICHELLE )
REID,
Respondents.
________________________________________________________________________________________________)
MANN, A.C.J. — Tanassa Desranleau appeals the trial court’s decision on
summary judgment dismissing her claims against Hyland’s, Inc., and its parent
companies Standard Homepathic Laboratories, Inc., and Standard Homepathic
Company (collectively, Hyland’s) alleging that it caused the death of Desranleau’s infant
son Jay’Breon. Desranleau argued that Hyland’s manufacturing process is flawed
resulting in individual tablets containing toxic levels of chemical components and that
Jay’Breon’s ingestion of such a toxic tablet caused his death.
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The trial court dismissed Desranleau’s claims after it determined that there was
no admissible evidence that Jay’Breon actually ingested Hyland’s cold medicine or that
the cold medicine was the probable cause of his death. Because when viewed in the
light most favorable to Desranleau there are material questions of fact, we reverse the
dismissal of Desranleau’s claims under the Washington Products Liability Act (WPLA),
ch. 7.72 RCW. We affirm dismissal of Desranleau’s claims under the Consumer
Protection Act (CPA), ch. 19.86 RCW and her request for punitive damages under
California law.
On January 18, 2014, 13-month-old Jay’Breon was found dead in his crib.
Prior to his death, Jay’Breon had been suffering from a cold, so his caregiver Michelle
Reid—Jay’Breon’s father’s girlfriend—gave him cold medicine earlier that morning. At
about 6 a.m. on January 18th, Reid awoke to hear that Jay’Breon’s chest was still
congested. She gave him a dose of children’s Tylenol and a banana before going back
to sleep. Reid and Jimi Williams, Jay’Breon’s father, awoke at 9:15 a.m. and saw that
Jay’Breon was still asleep. Reid did not specifically check on him to avoid waking him
up. Reid and Williams were in the living room for about 30 minutes when Reid went
back into the bedroom to get ready for work. Reid found Jay’Breon face down in his
crib, with his head covered by a blanket. Reid immediately noticed Jay’Breon was
blueish in color and not breathing. Reid, her roommate Nageisha Tramble, and a
neighbor, attempted to do CPR on Jay’Breon until the ambulance arrived. By this time,
Williams had left the scene. The fire department attempted CPR on Jay’Breon but
determined that he was deceased. Reid told police officers that “she was giving
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[Jay’Breon] Highlands (sic) tablets, children’s cold medicine, for the same amount of
time that he’d been having symptoms of a cold . . . she had been giving him about 8
tablets per day and that the last time she gave him 2 tablets was the night prior at [9
p.m.]” Reid fully cooperated with police and consented to a taped interview.
The King County Medical Examiner investigated Jay’Breon’s death. After an
autopsy, the medical examiner concluded that Jay’Breon’s body was normally
developed, but waited to determine an official cause of death until his toxicology
screening was finished. The toxicology report for Jay’Breon came back unremarkable,
so the medical examiner concluded that Jay’Breon’s official cause of death was sudden
unexpected infant death.
Three years later, Desranleau sued Hyland’s and Reid. Desranleau alleged that
Hyland’s knowingly sold toxic and dangerous homeopathic medicines for children, the
ingestion of which caused Jay’Breon’s death. This, Desranleau alleged, was a violation
of the WPLA and the CPA. Desranleau requested punitive damages under California
law.
Hyland’s manufacturers various types of homeopathic medicines, using the same
general manufacturing process. Hyland’s dilutes various products using a dry-dilution
process, where a quantity of an ingredient is mixed with a “diluent” over and over again
until the desired concentration is achieved.
In 2012, the United States Food and Drug Administration (FDA) informed
Hyland’s that it was concerned with Hyland’s dilution process related to a separate
product. The FDA wrote that Hyland’s dilution process may lead to batch stratification—
where some tablets within a single batch have significantly higher concentrations of an
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ingredient than others. The FDA recommended a liquid dilution process rather than a
dry dilution process. These concerns remained in 2017, when the FDA again informed
Hyland’s that it was concerned with their manufacturing process. The FDA wrote:
You manufacture drug products .from ingredients that pose potentially
. .
toxic effects. Specifically, Hyland’s Baby Teething Tablets and Hyland’s
Baby Nighttime Teething Tablets contain belladonna[1] and are marketed
for vulnerable patient populations, including infants and children.
FDA’s analysis of samples of your [products]. found that the alkaloid
. .
content far exceeded the claim on your label. The testing found
. . .
inconsistency in levels of belladonna, a toxic substance, and reveals that
your manufacturing process is poorly controlled and may pose
unnecessary risk to infants and children.
Though the FDA’s concerns were specifically related to stratification of
belladonna in Hyland’s teething products, and belladonna is not contained in Hyland’s
cold medicines, Hyland’s admitted that its manufacturing process is substantially similar
in all of its products. Therefore, Desranleau alleges that stratification of the alkaloid
gelsemium sempeivirens, which can be toxic in high doses and is found in Hyland’s
cold medicines, likely also occurs. The possibility of stratification coupled with the
potential for gelsemium sempeivirens to be toxic in high doses is what Desranleau
alleges caused Jay’Breon’s death.
Hyland’s moved for summary judgment arguing primarily that Desranleau was
unable to provide any admissible evidence that Hyland’s medicines caused Jay’Breon’s
death. Hyland’s also argued that Desranleau could not recover punitive damages under
either California or Washington law, and that she could not recover under the CPA.
The trial court heard argument on Hyland’s motion on April 13, 2018. The court
began the hearing by warning ‘the most serious issue here is that we don’t have
1 Belladonna is an alkaloid substance that can be harmful in large doses.
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admissible evidence. . . that this child even consumed the [Hyland’s] cold pills.”
Consistent with its warning, the court ruled in Hyland’s favor upon finding that
Desranleau had not produced any admissible evidence that “Reid actually provided the
Hyland’s Tiny Cold tablets to Jay’Breon.”2
Desranleau appeals.
We review summary judgment orders de novo, engaging in the same inquiry as
the trial court. Summary judgment is warranted only when there is no genuine dispute
of material fact and the moving party is entitled to judgment as a matter of law. CR
56(c). The facts and all reasonable inferences are viewed in the light most favorable to
the nonmoving party. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225-26, 770
P.2d 182 (1989).
The moving party for summary judgment bears the initial burden of showing the
absence of an issue of material fact. Young, 112 Wash. 2d at 225. “If the moving party is
a defendant and meets this initial showing, then the inquiry shifts to the party with the
burden of proof at trial, the plaintiff.” ~ If the plaintiff “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial,” then the trial court should grant the motion.
Young, 112 Wash. 2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). Only admissible evidence can be considered
in reviewing a motion for summary judgment. See Lynn v. Labor Ready, Inc., 136 Wn.
App. 295, 306, 151 P.3d 201 (2006).
2 Reid did not participate below and is not a party to this appeal.
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III.
To bring a claim under the WPLA, the plaintiff must establish that his or her harm
was proximately caused by the condition of the manufacturer’s product. ~ RCW
7.72.030(1) (“a product manufacturer is subject to liability. . . if the claimant’s harm was
proximately caused by the negligence of the manufacturer in that the product was not
reasonable safe as designed.”). “Proximate cause is ordinarily a question for the jury,
[but] when the facts are undisputed and the inferences therefrom are plain and
incapable of reasonable doubt or difference of opinion []it may be a question of law for
the court.” Fabrigue v. Choice Hotels Intern., Inc., 144 Wash. App. 675, 683, 183 P.3d
1118 (2008).
To establish causation, Desranleau relied on two propositions. First, Desranleau
relied on Reid’s statements to the police that she had given Jay’Breon Hyland’s cold
medicine to prove that Jay’Breon ingested Hyland’s cold medicine prior to his death.
Second, Desranleau relied upon Dr. Pietruszka’s expert opinion to prove that Hyland’s
cold medicine was the cause of Jay’Breon’s death.
A.
The trial court determined that Reid’s statements to the police officers were
inadmissible hearsay. Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” ER 801. Hearsay is inadmissible unless covered by a recognized exception.
ER 802. Since Desranleau was attempting to rely on Reid’s statements for the truth of
the matter asserted—that Reid administered Jay’Breon Hyland’s cold medicine—Reid’s
statements were hearsay. See State v. Hines, 87 Wash. App. 98, 941 P.2d 9 (1997)
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(holding that the admission of a police officer’s investigation report was error because it
was hearsay not covered by an applicable exception).
Desranleau argues that Reid’s statements are not hearsay because they are
admissions by a party-opponent. ER 801(d)(2) provides that a statement is not hearsay
if it is “offered against a party and is (i) the party’s own statements. . . or (ii) a statement
of which the party has manifested an adoption or belief in its truth.” Desranleau
contends that because Reid is a codefendant ER 801(d)(2) applies to her statements.
But Desranleau ignores that even though Reid is a codefendant in this suit, under
ER 801(d)(2), Reid’s statements could only be used against her; they could not be used
against Hylands. ~ ER 801(d)(2) (a statement is not hearsay if “offered against a
party and is. . . the party’s own statements.”) (Emphasis added). See also Feldmiller v.
Olson, 75 Wash. 2d 322, 324, 450 P.2d 816 (1969) (“statements made by Mr. Olson may
or may not be admissions on his part against him. They are admissible as evidence only
against him (Olson) and they would not be evidence against the other defendant
Leonard.”) (alteration in original). Therefore, Reid’s statements are not admissible
against Hyland’s under ER 801 (d)(2).
Desranleau also incorrectly argues that because Dr. Pietruszka relied on Reid’s
statements when forming his opinion, those statements became admissible evidence
under ER 703. ER 703 allows an expert witness to base their opinion on facts or data
regardless of their admissibility, and ER 705 provides that an expert may be required to
disclose the underlying facts or data upon which their opinion is based, but neither
provides that inadmissible statements become substantively admissible simply because
an expert relied upon them in forming their conclusions. See State v. Anderson, 44 Wn.
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App. 644, 652, 723 P.2d 464 (1986) (ER 705 is not “a mechanism for admitting
otherwise inadmissible evidence as an explanation of the expert’s opinion.”).3
But even though the trial court correctly identified Reid’s statements as hearsay,4
the trial court did not provide Desranleau with the benefit of all reasonable inferences.
When viewing the evidence and all reasonable inferences therefrom in the light most
favorable to Desranleau, there are material questions of fact as to whether Jay’Breon
ingested Hyland’s cold medicine. Young, 112 Wash. 2d at 226.
It was undisputed that Jay’Breon had a cold for the few days prior to his death.
Hyland’s admits as such in its briefing to this court, and the medical examiner’s report
described Jay’Breon’s lungs at the time of his death as congested.
There was also evidence that the police recovered Hyland’s infant cold medicine
from the scene: Officer Rego reported that he recovered cold medications from the
scene and booked them into evidence, and the police report contains an evidence
description of cold medications with the brands “Tylenol & Hyla.” This evidence was
retained by the police and later transferred to Hyland’s counsel.5 Further, Officer
Mickelsen reported that while photographing the kitchen and dining room, he located
numerous medications on the counter that were prescribed to the other residents of the
house.
~ See also State v. Lul, 153 Wash. App. 304, 321, 221 P.3d 948 (2009) (“ER 705 gives the trial
court discretion to permit an expert to relate hearsay or otherwise inadmissible evidence to the jury for the
limited purpose of explaining the reasons for his or her opinion”); In re Detention of Coe, 175 Wash. 2d 482,
504, 286 P.3d 29 (2012) (holding that because the trial court admitted hearsay evidence for substantive
purposes, the Court of Appeals erred when it reasoned the under ER 703 the hearsay evidence was
admissible).
~ Though, of course, this evidence may still be admissible at trial through the testimony of Reid or
through an otherwise recognized exception to the hearsay rule not addressed herein. ~ ~ ER 803.
~ Though whether the trial court was aware of the fact that Hyland’s counsel had the medications
recovered from the scene during summary judgment is unclear.
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Even without Reid’s statements, it would be reasonable for a jury to infer that
Jay’Breon ingested Hyland’s cold medicine from the chain of circumstantial evidence.
First, Jay’Breon had a cold leading up to his death. Second, an open bottle of Hyland’s
cold medicine—specifically designed for infants who were experiencing a cold—was
recovered from the scene. Third, the police found this medicine in a separate location
from the other household occupant’s medications, indicating that it was not their
medication. And fourth, the police recovered this medication as evidence from where
Jay’Breon was found. There was enough circumstantial evidence in the record, when
viewed in the light most favorable to Desranleau, for a jury to find that Jay’Breon
ingested Hyland’s cold medicine.
B.
Desranleau also offered Dr. Pietruszka’s expert opinion to establish that Hyland’s
products contained potentially lethal doses of alkaloids and therefore were likely the
cause of Jay’Breon’s death. Hyland’s argues on appeal that we should disregard Dr.
Pietruszka’s opinion and that because Dr. Pietruszka’s opinion should be excluded,
Desranleau cannot establish legal causation.
But Hyland’s bases its argument on fact based questions—such as whether Dr.
Pietruszka relied on improper information in reaching his conclusion, and whether he
adhered to the proper scientific method. This indicates that material questions of fact
remain as to whether Dr. Pietruszka’s opinions properly conclude that Hyland’s products
caused Jay’Breon’s death.
Further, Hyland’s asks this court to rule on the credibility of Dr. Pietruszka. The
trial court did not rule on the admissibility of Dr. Pietruszka’s opinions. See Volk v.
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DeMeerleer, 187 Wash. 2d 241, 277, 386 P.3d 254 (2016) (“[a]dmission [of an expert
witness] is proper provided the expert is qualified and his or her testimony is helpful [to
the trier of fact.]”).
The medical examiner ruled out numerous causes of death including
asphyxiation, hyperthermia, and other natural causes of death other than sudden infant
death syndrome. But the medical examiner did not have the benefit of the information
about Hyland’s cold medicine available to him when he conducted his investigation; Dr.
Pietruszka did. As this is a review of a summary judgment order, where we view all of
the evidence and reasonable inferences from the record in the light most favorable to
Desranleau, we cannot conclude, as a matter of law, that Dr. Pietruszka’s expert
opinions should be disregarded.
“Proximate cause is ordinarily a question for the jury.” Fabrigue, 144 Wash. App. at
683. Since here “the facts are []disputed and the inferences therefrom are [not] plain
and incapable of reasonable doubt or difference of opinion,”6 we reverse. Desranleau
rebutted Hyland’s motion for summary judgment with sufficient evidence to reach the
trier of fact on the questions of whether Jay’Breon consumed Hyland’s cold medicine
before his death and whether that medicine was the cause of his death.
Ill.
Desranleau requested punitive damages under California law because Hyland’s
is a California company and manufacturers all of its products in California. See Sinqh v.
Edwards Lifesciences Corp., 151 Wash. App. 137, 140, 210 P.3d 337 (2009) (“where, as
here, an entity headquartered in California, committed the conduct in California that
6 Fabriciue, 144 Wash. App. at 683.
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resulted in the plaintiff’s damages, California had the greater interest in deterring
such . . . activities.”). But even if we assume California law applies, Desranleau’s claim
is barred by California’s two-year statute of limitations. Cal. Civ. Proc. Code § 335.1.
Jay’Breon died on January 18, 2014, therefore any claims he or his estate had
related to his death accrued on that date. See Atchison v. Great Western Maltinci Co.,
161 Wash. 2d 372, 374-75, 166 P.2d 662 (2007) (statute of limitations for wrongful death
action began to run upon the decedent’s death). Desranleau did not file her complaint
until January 3, 2017; nearly three years later. Therefore, the California statute of
limitations bars Desranleau’s claim for punitive damages.
Desranleau tries to avoid this result by arguing that the discovery rule should
apply to her claim and toll the statute of limitations until 2016 when she first met with her
attorney and discovered that Hyland’s could potentially be liable for Jay’Breon’s death.
But our Supreme Court has already rejected that argument. See Reichelt v. Johns
Manville Corp., 107 Wash. 2d 761, 772, 733 P.2d 530 (1987) (“Mr. Reichelt would have us
adopt a rule that would in effect toll the statute of limitations until a party walks into a
lawyer’s office and is specifically advised that he or she has a legal cause of action; that
is not the law.”).7
Desranleau knew of the damages that she and Jay’Breon suffered in 2014.
While she may not have known that she had a potential cause of action against
Hyland’s until after meeting with her legal counsel, that cannot save her claim. “A party
~ And Desranleau waived this argument by only mentioning it in a footnote of her opening brief
and not substantively arguing her point until her reply brief.a~ State v. Johnson, 69 Wash. App. 189, 194
n.4, 847 P.2d 960 (1993) (‘placing an argument. in a footnote is, at best, ambiguous or equivocal as to
. .
whether the issue is truly intended to be part of the appeal.”) and Cowiche Canyon Conservancy v.
Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 (1992) (“[a}n issue raised and argued for the first time in a
reply brief is too late to warrant consideration.”).
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must exercise reasonable diligence in pursuing a legal claim. If such diligence is not
exercised in a timely manner, the cause of action will be barred by the statute of
limitations.” Reichelt, 107 Wash. 2d at 772.
Iv.
To establish a CPA violation, a private plaintiff must prove “(1) an unfair or
deceptive act or practice; (2) which occurs in trade or commerce; (3) that impacts the
public interest; (4) which causes injury to the plaintiff in his or her business or property;
and (5) which injury is causally linked to the unfair or deceptive act.” Washington St.
Physicians Ins. Exchange and Ass’n v. Fisons Corn., 122 Wash. 2d 299, 312, 858 P.2d
1054 (1993). “The causation requirement is met where the defendant induced the
plaintiff to act or refrain from acting.” Robinson v. Avis Rent a Car System, 106 Wn.
App. 104, 113, 22 P.3d 818 (2001).
Desranleau’s CPA claim fails as a matter of law because she cannot establish
that Hyland’s induced her to do anything. Desranleau admitted below that she never
purchased any Hyland’s product or even heard of Hyland’s before this suit. Therefore,
Desranleau cannot establish that Hyland’s induced her to act or refrain from acting, and
as such she cannot establish a prima facie case for a violation of the CPA.
We reverse and remand the trial court’s grant of summary judgment on
Desranleau’s WPLA claim, but affirm the trial court’s grant of summary judgment on
Desranleau’s punitive damages and CPA claims.
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F
/
WE CONCUR:
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