IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TANESSA DESRANLEAU, individually and 

### ) No. 78343-2-I as the Personal Representative ofthe 

### ) ESTATE ofJAY’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 summaryjudgment 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 ofsuch a toxic tablet caused his death.No. 78343-2-1/2

The trial court dismissed Desranleau’s claims after it determined thatthere was no admissible evidence thatJay’Breon actually ingested Hyland’s cold medicine orthat the cold medicine was the probable cause of his death. Becausewhen viewed in the light mostfavorable to Desranleau there are material questions offact, we reverse the dismissal of Desranleau’s claims underthe Washington Products LiabilityAct (WPLA), ch. 7.72 RCW. We affirm dismissal of Desranleau’s claims underthe Consumer Protection Act (CPA), ch. 19.86 RCW and her requestfor punitive damages under California law.

On January 18, 2014, 13-month-old Jay’Breon was found dead in his crib. Priorto 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 earlierthat morning. At about 6 a.m. on January 18th, Reid awoke to hearthat Jay’Breon’s chestwas still congested. She gave him a dose ofchildren’s Tylenol and a banana before going back to sleep. Reid and Jimi Williams, Jay’Breon’sfather, awoke at 9:15 a.m. and sawthat 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 forabout 30 minuteswhen Reid went back into the bedroom to get readyforwork. Reid found Jay’Breon face down in his crib, with his head covered by a blanket. Reid immediately noticed Jay’Breon was blueish in colorand not breathing. Reid, her roommate Nageisha Tramble, and a neighbor, attempted to do CPR on Jay’Breon until the ambulance arrived. Bythis time, Williams had leftthe scene. The fire departmentattempted 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, forthe same amount of time that he’d been having symptoms ofa cold

. . . she had been giving him about 8 tablets perday and thatthe lasttime she gave him 2 tablets was the night priorat [9 p.m.]” Reid fully cooperated with police and consented to a taped interview. The King County Medical Examiner investigated Jay’Breon’s death. Afteran autopsy, the medical examinerconcluded thatJay’Breon’s bodywas normally developed, butwaited to determine an official cause ofdeath until his toxicology screening was finished. The toxicology reportforJay’Breon came back unremarkable,
so the medical examinerconcluded thatJay’Breon’s official cause ofdeath was sudden unexpected infant death. Three years later, Desranleau sued Hyland’s and Reid. Desranleau alleged that Hyland’s knowinglysold toxic and dangerous homeopathic medicines forchildren, the ingestion ofwhich caused Jay’Breon’s death. This, Desranleau alleged, was a violation ofthe WPLA and the CPA. Desranleau requested punitive damages underCalifornia law. Hyland’s manufacturers varioustypes of homeopathic medicines, using the same general manufacturing process. Hyland’s dilutes various products using a dry-dilution process, where a quantity ofan ingredient is mixed with a “diluent” overand overagain until the desired concentration is achieved. In 2012, the United States Food and Drug Administration (FDA) informed Hyland’s that itwas concerned with Hyland’s dilution process related to a separate product. The FDAwrote that Hyland’s dilution process may lead to batch stratification— where some tablets within a single batch have significantly higher concentrations ofan

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ingredientthan others. The FDA recommended a liquid dilution process ratherthan a dry dilution process. These concerns remained in 2017, when the FDA again informed Hyland’s that itwas concerned with their manufacturing process. The FDAwrote: You manufacture drug products

. . . from ingredients that pose potentially toxic effects. Specifically, Hyland’s BabyTeething Tablets and Hyland’s Baby NighttimeTeething Tablets contain belladonna[1] and are marketed forvulnerable patient populations, including infants and children. FDA’s analysis ofsamples ofyour [products].

. . found thatthe alkaloid contentfarexceeded the claim on your label.

. . . The testing found inconsistency in levels of belladonna, a toxicsubstance, and reveals that your manufacturing process is poorly controlled and may pose unnecessary riskto infants and children. Though the FDA’s concerns were specifically related to stratification of belladonna in Hyland’steething products, and belladonna is not contained in Hyland’s cold medicines, Hyland’s admitted that its manufacturing process is substantiallysimilar in all of its products. Therefore, Desranleau alleges that stratification ofthe alkaloid gelsemium sempeivirens, which can be toxic in high doses and is found in Hyland’s cold medicines, likely also occurs. The possibility ofstratification coupled with the potential forgelsemium sempeivirensto be toxic in high doses is what Desranleau alleges caused Jay’Breon’s death. Hyland’s moved forsummaryjudgment arguing primarilythat 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 orWashington law, and thatshe could not recover underthe CPA. The trial court heard argumenton Hyland’s motion on April 13, 2018. The court began the hearing bywarning ‘the most serious issue here is thatwe don’t have

1 Belladonnaisan alkaloid substance that can be harmful in large doses. -4-No. 78343-2-1/5

admissible evidence.

. . thatthis child even consumed the [Hyland’s] cold pills.” Consistentwith 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 summaryjudgment orders de novo, engaging in the same inquiry as the trial court. Summaryjudgment is warranted onlywhen there is no genuine dispute of material fact and the moving party is entitled tojudgment as a matterof law. CR 56(c). The facts and all reasonable inferences are viewed in the light mostfavorable to the nonmoving party. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). The moving partyforsummaryjudgment bears the initial burden ofshowing the absence ofan issue of material fact. Young, 112 Wn.2d at 225. “Ifthe moving party is
a defendant and meets this initial showing, then the inquiryshifts to the partywith the burden of proofattrial, the plaintiff.” 

### ~ Ifthe plaintiff“fails to make a showing sufficient to establish the existence ofan element essential to that party’s case, and on which that partywill bearthe burden of proofattrial,” then the trial court should grantthe motion. Young, 112 Wn.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 forsummaryjudgment. See Lynn v. Labor Ready, Inc., 136 Wn. App. 295, 306, 151 P.3d 201 (2006).

2 Reid did notparticipate belowand is not a party to this appeal. -5-No. 78343-2-1/6
III.

To bring a claim underthe

### WPLA, the plaintiffmust establish that his or her harm
was proximately caused bythe condition ofthe manufacturer’s product. ~ RCW 7.72.030(1) (“a product manufacturer is subjectto liability.

. . ifthe claimant’s harm was proximately caused bythe negligence ofthe manufacturer in thatthe productwas not reasonable safe as designed.”). “Proximate cause is ordinarily a question forthejury, [but] when the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt ordifference ofopinion []it may be a question of lawfor the court.” Fabrigue v. Choice Hotels Intern., Inc., 144 Wn. 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 thatJay’Breon ingested Hyland’s cold medicine priorto his death. Second, Desranleau relied upon Dr. Pietruszka’s expert opinion to prove that Hyland’s cold medicinewas the cause ofJay’Breon’s death. A. The trial court determined that Reid’s statements to the police officers were inadmissible hearsay. Hearsay is “a statement, otherthan one made bythe declarant while testifying atthe trial or hearing, offered in evidence to prove the truth ofthe 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 forthe truth of the matterasserted—that Reid administered Jay’Breon Hyland’s cold medicine—Reid’s statements were hearsay. See State v. Hines, 87 Wn. App. 98, 941 P.2d 9 (1997)

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(holding thatthe admission ofa police officer’s investigation reportwas 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 ofwhich the party has manifested an adoption or belief in its truth.” Desranleau contends that because Reid is a codefendant ER 801(d)(2) appliesto herstatements. 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 Feldmillerv. Olson, 75 Wn.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 theywould not be evidence againstthe otherdefendant 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 expertwitness to base theiropinion on facts ordata regardless oftheiradmissibility, and ER 705 provides that an expert may be required to disclose the underlying facts ordata upon which theiropinion is based, but neither provides that inadmissible statements become substantively admissible simply because
an expert relied upon them in forming theirconclusions. See State v. Anderson, 44 Wn.

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App. 644, 652, 723 P.2d 464 (1986) (ER 705 is not “a mechanism foradmitting otherwise inadmissible evidence as an explanation ofthe 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 ofall reasonable inferences. When viewing the evidence and all reasonable inferences therefrom in the light most favorableto Desranleau, there are material questions offact as to whetherJay’Breon ingested Hyland’s cold medicine. Young, 112 Wn.2d at 226. Itwas undisputed thatJay’Breon had a cold forthe few days priorto his death. Hyland’s admits as such in its briefing to this court, and the medical examiner’s report described Jay’Breon’s lungs atthe time of his death as congested. There was also evidence thatthe 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 ofcold medicationswith the brands “Tylenol & Hyla.” This evidence was retained bythe police and latertransferred to Hyland’s counsel.5 Further, Officer Mickelsen reported thatwhile photographing the kitchen and dining room, he located
numerous medications on the counterthatwere prescribed to the other residents ofthe house.

~ See also State v. Lul, 153 Wn. App. 304, 321, 221 P.3d 948 (2009) (“ER 705 gives the trial court discretion to permit an expertto relate hearsay orotherwise inadmissible evidence to thejury forthe limited purpose of explaining the reasons for his or heropinion”); In re Detention of Coe, 175 Wn.2d 482, 504, 286 P.3d 29 (2012) (holding that because the trial court admitted hearsay evidence forsubstantive purposes, the Court ofAppeals erred when it reasoned the under ER 703 the hearsay evidence was admissible).

~ Though, ofcourse, this evidence may still be admissible attrial through the testimony of Reid or through an otherwise recognized exception to the hearsay rule not addressed herein. ~ ~ ER 803.

~Though whetherthe trial courtwas aware ofthe factthat Hyland’s counsel had the medications recovered from the scene during summaryjudgment is unclear. -8-No. 78343-2-1/9

Even without Reid’s statements, itwould be reasonable forajuryto inferthat Jay’Breon ingested Hyland’s cold medicine from the chain ofcircumstantial 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 itwas nottheir 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 mostfavorable to Desranleau, forajuryto find thatJay’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 ofalkaloids and therefore were likelythe
cause ofJay’Breon’s death. Hyland’s argues on appeal thatwe 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 properscientific method. This indicates that material questions offact remain as to whether Dr. Pietruszka’s opinions properly conclude that Hyland’s products caused Jay’Breon’s death. Further, Hyland’s asks this courtto rule on the credibility of Dr. Pietruszka. The trial court did not rule on the admissibility of Dr. Pietruszka’s opinions. See Volkv.

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DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254 (2016) (“[a]dmission [ofan expert witness] is proper provided the expert is qualified and his or hertestimony is helpful [to the trieroffact.]”). The medical examiner ruled out numerous causes ofdeath including asphyxiation, hyperthermia, and other natural causes ofdeath otherthan sudden infant death syndrome. Butthe medical examinerdid not have the benefit ofthe information about Hyland’s cold medicine available to him when he conducted his investigation; Dr. Pietruszka did. As this is a reviewofa summaryjudgment order, where we view all of the evidence and reasonable inferencesfrom the record in the light mostfavorable to Desranleau, we cannot conclude, as a matterof law, that Dr. Pietruszka’s expert opinions should be disregarded. “Proximate cause is ordinarily a question forthejury.” Fabrigue, 144 Wn. App. at 683. Since here “the facts are []disputed and the inferences therefrom are [not] plain and incapable of reasonable doubt ordifference ofopinion,”6we reverse. Desranleau rebutted Hyland’s motion forsummaryjudgmentwith sufficient evidence to reach the trieroffact on the questions ofwhetherJay’Breon consumed Hyland’s cold medicine before his death and whetherthat 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 Wn. 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 Wn. App. at683. -10-No. 78343-2-111 1

resulted in the plaintiff’s damages, California had the greater interest in deterring such

. . . activities.”). But even ifwe assume California law applies, Desranleau’s claim is barred by California’s two-yearstatute 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. GreatWestern Maltinci Co., 161 Wn.2d 372, 374-75, 166 P.2d 662 (2007) (statute of limitationsforwrongful death action began to run upon the decedent’s death). Desranleau did notfile hercomplaint until January 3, 2017; nearlythree years later. Therefore, the California statute of limitations bars Desranleau’s claim for punitive damages. Desranleau tries to avoid this result by arguing thatthe discovery rule should applyto herclaim and toll the statute of limitations until 2016 when she first metwith her attorney and discovered that Hyland’s could potentially be liableforJay’Breon’s death. But our Supreme Court has already rejected that argument. See Reichelt v. Johns Manville Corp., 107 Wn.2d 761, 772, 733 P.2d 530 (1987) (“Mr. Reicheltwould have us adopt a rule thatwould in effecttoll the statute of limitations until a partywalks into a lawyer’s office and is specifically advised that he orshe has a legal cause ofaction; that is notthe law.”).7 Desranleau knew ofthe damages that she and Jay’Breon suffered in 2014. While she may not have known that she had a potential cause ofaction against Hyland’s until after meeting with her legal counsel, that cannot save herclaim. “A party

~And Desranleau waived this argument by only mentioning it in a footnote of heropening brief and notsubstantively arguing her point until her reply brief. 

## a~ State v. Johnson, 69 Wn. App. 189, 194 n.4, 847 P.2d 960 (1993) (‘placing an argument.

. . in a footnote is, at best, ambiguous orequivocal as to whetherthe issue is truly intended to be part ofthe appeal.”) and Cowiche Canyon Conservancy v. Bosley, 118Wn.2d 801, 809, 828 P.2d 549 (1992) (“[a}n issue raised and argued forthe firsttime in a reply brief is too late to warrant consideration.”). -11-No. 78343-2-1/12

must exercise reasonable diligence in pursuing a legal claim. Ifsuch diligence is not exercised in a timely manner, the cause ofaction will be barred bythe statute of limitations.” Reichelt, 107 Wn.2d at 772. 

### Iv. To establish a CPAviolation, a private plaintiff must prove “(1) an unfairor deceptive act or practice; (2) which occurs in trade orcommerce; (3) that impacts the public interest; (4) which causes injuryto the plaintiff in his or her business or property; and (5) which injury is causally linked to the unfairordeceptive act.” Washington St. Physicians Ins. Exchange and Ass’n v. Fisons Corn., 122 Wn.2d 299, 312, 858 P.2d 1054 (1993). “The causation requirement is metwhere the defendant induced the plaintiffto 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 matterof law because she cannot establish that Hyland’s induced herto do anything. Desranleau admitted belowthat she never purchased any Hyland’s product oreven heard of Hyland’s before this suit. Therefore, Desranleau cannot establish that Hyland’s induced herto act or refrain from acting, and
as such she cannot establish a primafacie case fora violation ofthe CPA. We reverse and remand the trial court’s grant ofsummaryjudgment on Desranleau’s WPLA claim, but affirm the trial court’s grant ofsummaryjudgment on Desranleau’s punitive damages and CPA claims.

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WE CONCUR: / F

o ~A1IIII_~IO~. 

## b



# /

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