
    Harry WHITLOCK, et al., v. PEPSI AMERICAS, et al., Defendants.
    No. C 08-2742 SI.
    United States District Court, N.D. California.
    Jan. 26, 2010.
    Tesfaye Wolde Tsadik, Law Offices of Tesfaye Tsadik, William Morris Simpich, Attorney at Law, Oakland, CA, for Plaintiffs.
    Collie Fitch James, Latham & Watkins, Costa Mesa, CA, Holly J. Tate, Latham & Watkins, Morgia Elise Dampf, Latham and Watkins, San Francisco, CA, for Defendants.
   ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON CLAIMS BASED ON PRECONCEPTION EXPOSURE

SUSAN ILLSTON, District Judge.

Defendants’ motion for summary judgment on claims based on preconception exposure is scheduled for a hearing on February 5, 2010. Pursuant to Civil Local Rule 7-1 (b), the Court determines that the matter is appropriate for resolution without oral argument, and VACATES the hearing on this matter. After consideration of the parties’ papers, the Court hereby GRANTS defendants’ motion. The case management conference scheduled for February 5, 2010 at 3:00 p.m. remains on calendar.

BACKGROUND

On May 30, 2008, plaintiffs filed this case alleging injuries sustained as a result of improper disposal of hazardous waste at the Remco facility located in Willits, California. Plaintiffs are residents or former residents of the city of Willits, workers at the Remco site, or associated with workers in the site or related to plaintiffs exposed to the contaminants. The complaint alleges a number of California tort claims based on hazardous waste contamination, including negligence, negligence per se, intentional infliction of emotional distress, loss of consortium, nuisance, and toxic trespass. See Compl. ¶¶ 66-127.

Plaintiff Ralph Weber, who has never worked or lived in Willits, seeks compensation solely for personal injuries, and based on the alleged preconception exposure of his parents and grandparents. In his discovery responses, Mr. Weber claims that his maternal grandparents, who lived in Willits between 1953 and 1966, were exposed to a variety of Remco contaminants. See Dampf Decl. Ex. 4 at Question 28 (Weber Questionnaire Response). As a result of his grandparents’ alleged exposure, Mr. Weber’s mother allegedly suffered preconception injuries, which, in conjunction with the direct exposure that she claims to have endured while living in Willits between 1955 and 1966, resulted in genetic damage that was allegedly passed to Mr. Weber upon conception. Mr. Weber was born in 1976. Mr. Weber claims that as a result of the alleged preconception exposure, he suffers from a birth defect, Attention Deficit Disorder, nosebleeds, dizziness/fainting spells, shortness of breath, headaches, orthodontia or dental conditions, and injuries to his heart/circulation, immune, and nervous systems. Id. at Section III (“Claims”). In addition to Mr. Weber, eleven other plaintiffs allege personal injury claims based on alleged preconception exposure, as well as direct exposure. Those plaintiffs are John Davies II, Melissa Davies, Michelle Davies, Michael Mabery, Rebekah Anastasiou (Mabery), Daniel Mendez (Smith), Danielle Smith (Mendez), Kala Smith, Jonathan Wakeland, Ruth Weber, and Franklin Winnemucca.

LEGAL STANDARD

Summary adjudication is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

In a motion for summary judgment, “[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.” See T.W. Elec. Service, Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

DISCUSSION

Defendants seek summary judgment on all claims alleged by Mr. Weber, and on the claims of eleven plaintiffs listed above to the extent those claims are based on alleged preconception exposure. Defendants contend that California law does not recognize a preconception cause of action except in cases involving a medical professional or product manufacturer whose alleged negligent conduct was directly related to reproduction.

California case law establishes that a cause of action for negligence, in a preconception case or otherwise, requires (1) a duty of care; (2) breach of that duty; (3) injury resulting from that breach; and (4) compensable damages. See, e.g., Huggins v. Longs Drug Stores California, Inc., 6 Cal.4th 124, 129, 24 Cal.Rptr.2d 587, 862 P.2d 148 (1993). To be found liable in tort, defendants must have owed a duty of care to plaintiffs. “A tort, whether intentional or negligent, involves a legal duty, whether by statute, contract, or otherwise. Without a duty, ‘any injury is damnum absque injuria — an injury without a wrong.’ ” McGettigan v. Bay Area Rapid Transit Dist., 57 Cal.App.4th 1011, 1016, 67 Cal.Rptr.2d 516 (1997) (quoting 5 Witkin, Summary of California Law, Torts § 6 at 61 (9th ed.1988).) Whether there exists a legal duty of care “is a question of law to be determined on a case-by-case basis.” Parsons v. Crown Disposal Co., 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70 (1997). The existence of duty “depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278 (1989). “The foreseeability of a particular kind of harm plays a very significant role in this calculus .... ” Ballard v. Uribe, 41 Cal.3d 564, 573, 224 Cal.Rptr. 664, 715 P.2d 624 (1986).

Few California courts have addressed the question of how the duty/foreseeability element of a negligence cause of action applies in the context of a preconception tort. In Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982), the California Supreme Court recognized a cause of action for a preconception tort, although the justices differed in the types and amount of damages they would have awarded. In Turpin, after medical care providers failed to diagnose hereditary total deafness in plaintiffs older sibling, plaintiffs parents conceived plaintiff, who was born totally deaf. Plaintiff sought general damages for being “deprived of the fundamental right to be born as a whole, functional human being without total deafness,” and special damages for expenses such as specialized teaching, training, and hearing equipment. The Turpin court grappled with the complexities of awarding damages where, but for defendant’s negligence, plaintiff would not have been born at all. The court found it impossible to assess general damages in such a “wrongful life” case, and denied general damages as unaseertainable. The court did, however, recognize plaintiffs cause of action and allowed special damages for expenses including specialized teaching. In reaching its conclusion, the court stated: “If [plaintiffs] deafness was caused by negligent treatment of her mother during pregnancy, or if it resulted from a tort committed upon her mother before conception, it is clear that she would be entitled to recover against the negligent party.” Turpin, 31 Cal.3d at 230-231, 182 Cal.Rptr. 337, 643 P.2d 954 (emphasis added). Since Turpin, the few California courts that have addressed preconception torts have confined Turpin to its facts. See, e.g., Gami v. Mullikin Medical Center, 18 Cal.App.4th 870, 883, 22 Cal.Rptr.2d 819 (1993) (“Claims for ‘wrongful life’ are essentially actions for malpractice based on negligent genetic counseling and testing.”); Foy v. Greenblott, 141 Cal.App.3d 1, 14, 190 Cal.Rptr. 84 (1983) (construing Tmpin to permit preconception claims “only where [defendants] have failed to diagnose and warn the parents of the probability that an infant will be born with a hereditary ailment or disability and the infant is in fact born with that ailment”).

Hegyes v. Unjian Enterprises, Inc., 234 Cal.App.3d 1103, 286 Cal.Rptr. 85 (1991), is instructive. In Hegyes, a woman was in an automobile accident and sustained injuries requiring that she be fitted with a peritoneal shunt. Thereafter, she became pregnant and, during the pregnancy, the fetus pressed against the shunt, resulting in a premature delivery and consequent injury to the child. The child then sought to recover against the negligent driver responsible for the mother’s accident-related injuries. The court concluded that a negligent motorist does not owe a legal duty of care to the subsequently conceived child of a woman who is injured in an automobile accident. Id. at 1110, 286 Cal.Rptr. 85. The Hegyes court held that a duty to the unconceived exists only when a defendant’s conduct involves the provision of medical services or products related to the reproductive process. The Hegyes majority noted that under California law, “a duty has never been found, nor has liability been imposed, in a preconception negligence case where defendant was not a medical professional or product liability manufacturer.” Id. at 1113, 286 Cal.Rptr. 85. See, e.g., Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980) (finding a duty against medical professionals who negligently performed genetic testing); Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir.1973) (finding a duty against a manufacturer of birth control pills); Foy, 141 Cal.App.3d 1, 190 Cal.Rptr. 84(denying a plaintiffs claim for “wrongful life” where plaintiffs mother, an incompetent person, became pregnant while detained in a mental health facility and gave birth to a normal, healthy boy).

Plaintiffs advance a number of theories about why defendants should be liable for preconception negligence, such as analogizing toxic torts to products liability, relying on cases involving nuisance, and arguing that there is a special relationship between a polluting landowner and a neighbor. However, to date no California courts have found a duty to a preconception plaintiff for torts unrelated to the reproduction context. Hegyes has been the law in California for 19 years. If science and medicine progress to the point that scientists can interpret individual DNA histories or can confidently attribute injuries to chemical exposure, the foreseeability that negligent disposal of hazardous chemicals may genetically damage a later conceived child may become clearer. A California appellate court may choose to distinguish the negligent car driver scenario in Hegyes, and uphold the more general duty to preconception plaintiffs suggested by Twrpin. This Court, however, is bound to apply the law as it presently stands in California. In this case, defendants’ predecessors produced hydraulic cylinders for use in various applications, including highway construction equipment, offshore drilling operations, and tunneling equipment. Defendants did not provide goods or services having a direct relationship to the reproductive process. Hence, defendants who may have negligently disposed of hazardous chemicals in the course of their business, do not owe a duty of care to the subsequently conceived offspring of a person whose genetic structure was allegedly altered by exposure to the harmful chemicals.

At the end of plaintiffs’ opposition, plaintiffs state that “[i]f the court has any concerns about the adequacy of Plaintiffs’ cause of action, Plaintiffs request leave to amend the complaint to conform with the court’s order. The Defendants filed no 12(b)(6) action in this case, and the motion for summary judgment should be treated as a motion for judgment on the pleadings.” Opposition at 7:3-6. There is no support for plaintiffs’ assertion that because defendants did not move to dismiss the complaint they are somehow precluded from now moving for summary judgment. Moreover, because the Court concludes that summary judgment is warranted as a matter of law, leave to amend would be futile.

CONCLUSION

For the foregoing reasons, the Court GRANTS defendants’ motion for summary judgment on claims based on preconception exposure. (Docket No. 76)

IT IS SO ORDERED. 
      
      . The Court will issue separate orders on the other motions that are also scheduled for a hearing on February 5, 2010.
     
      
      . Mr. Weber does not assert any claims for loss of consortium or trespass, nor does he allege any claims for property damage.
     
      
      . In an order filed March 23, 2004 in the related case Avila et al. v. Willits Environmental Remediation Trust, C 99-3941 SI, the Court granted defendants' motion for summary judgment on claims based on preconception exposure. The Court held that under California law, defendants who may have negligently disposed of hazardous chemicals in the course of their business do not owe a duty of care to the subsequently conceived offspring of a person whose genetic structure was allegedly altered by exposure to the harmful chemicals. Plaintiffs, who are represented by the same counsel as the Avila plaintiffs, rely on the same theories advanced in Avila regarding the preconception claims, and yet California law remains unchanged since the Court's March 23, 2004 order in Avila.
      
     