Waleed ELSHEREF, a Minor, etc., et al., Plaintiffs and Appellants,
APPLIED MATERIALS, INC., Defendant and Respondent.
Trial Court: Santa Clara County Superior Court, Superior Court No. 1-10-CV170736, Trial Judge: Hon. Mark Pierce, (Santa Clara County Super. Ct. No. 1-10-CV170736).
[167 Cal.Rptr.3d 259] Counsel for Plaintiffs/Appellants Waleed Elsheref, Khaled Elsheref, Zainab Musbah: Waters Kraus & Paul, Michael B. Gurien.
Counsel for Defendant/Respondent Applied Materials, Inc.: Paul HastingsJohnP. PhillipsPeterC. MeierEmily Dodds Powell
In this appeal we consider the circumstances under which a legal duty of care is owed to a later-conceived child. In particular, we consider whether an employer owes a legal duty of care to the subsequently-conceived child of its employee.
Plaintiffs Waleed Elsheref (Waleed), a minor, and his mother, Zainab Musbah, appeal from a judgment entered in favor of defendant Applied Materials, Inc. (AMI) on their preconception tort claims. Prior to and during
Zainab's pregnancy with Waleed, Waleed's father and guardian ad litem, Khaled Elsheref (Khaled), worked as an engineer at AMI's semiconductor manufacturing facility. Waleed was born with a number of birth defects allegedly caused by Khaled's exposure to toxic chemicals at AMI. Waleed sought compensation for those injuries, while Zainab sought to recover for emotional distress suffered in connection with her son's injuries.
The court granted summary adjudication to AMI on the ground that it owed no legal duty to plaintiffs. We conclude that AMI did not owe a preconception duty to Waleed. However, we also conclude that lack of duty was not fatal to Waleed's strict products liability claim. Accordingly, we reverse the judgment with directions.
I. FACTUAL AND PROCEDURAL BACK
[167 Cal.Rptr.3d 260] GROUND 
A. Khaled's Employment at AMI
AMI provides equipment, services, and software to enable the manufacture of advanced semiconductor, flat panel display, and solar photovoltaic products. AMI employed Khaled from 2001 to 2008. Khaled's job duties included working with tools containing mercury and ethylene glycol, among other chemicals, as well as tools emitting ionizing radiation.
AMI provided its employees with information and training concerning the chemicals in their tools and related hazards. AMI also employs industrial hygienists to protect worker health and safety by assessing and reducing potential workplace hazards and communicating those hazards to employees. AMI employs nurses to provide on-site health services.
In 2001, AMI sent Khaled to be examined by a physician, as required by state and federal regulations, for authorization to wear a respirator at work. In connection with that examination, Khaled filled out a health history questionnaire that included questions about his reproductive history, such as whether his spouse ever had a miscarriage, a child with a birth defect, or difficulty becoming pregnant. The questionnaire instructed Khaled not to provide his responses to AMI.
Concerns that a tool used by Khaled's group might be leaking mercury prompted AMI to perform an industrial hygiene assessment in 2003. A report
completed by Michelle Lan, a certified industrial hygienist employed by AMI, indicated that the assessment detected no levels of mercury in the breathing zone. The report directed measures for limiting dermal exposure to mercury when the mercury in the tool is replaced.
While Khaled worked at AMI, his wife Zainab conceived and gave birth to their son Waleed.
B. The First Amended Complaint
In the operative first amended complaint, plaintiffs alleged that Waleed was born with birth defects— including ventricular septal defect, dysplastic aortic valve, coarctation of the aorta, sub aortic stenosis, scheon complex with multiple congenital heart defects, hyperbilirubinemia, bilateral hydronephrosis, and vesicoureteral flow reflux— caused by his father's exposure to teratogenic, genotoxic, and reproductively toxic chemicals and processes during his employment with AMI. Plaintiffs alleged that AMI knew or should have known about the hazardous nature of the chemicals and processes to which its employees, including Khaled, were exposed; failed to adequately protect its employees, including Khaled, from such exposure; concealed and/or misrepresented the nature of the chemicals; and failed to warn its employees about the nature of the chemicals and processes. Plaintiffs further alleged that AMI had " actual or constructive knowledge that serious injury, including teratogenic, genotoxic and reproductive harm ..., was a probable result of exposing their employees and their unborn or future children to harmful chemicals and processes."
[167 Cal.Rptr.3d 261] The complaint asserted six causes of action on behalf of Waleed for negligence, strict liability/ultrahazardous activity, willful misconduct, misrepresentation, premises liability, and strict products liability. Zainab asserted claims for negligent and intentional infliction of emotional distress.
C. AMI's Motion for Summary Adjudication as to the Existence of a Duty
AMI moved for summary adjudication, seeking a ruling that it did not owe a duty of care to plaintiffs for preconception injuries. Specifically, AMI argued that it lacked any duty to its employees' future children because, under California law, only medical professionals and manufacturers of products related to ...