Bennett v. Laci Le Beau Corp.

Filed 8/18/06 Bennett v. Laci Le Beau Corp. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Gene Bennett sued the producers and sellers of a Dieter's Tea, arguing it contained a product that depleted his potassium levels, which in turn caused cardiac arrhythmias. The trial court granted defendant's motions for summary judgment. We affirm.

Background

Every day for about ten years until January 2001, Gene Bennett drank a cup of Laci Le Beau's Super Dieter's Tea (Dieter's Tea). Dieter's Tea allegedly contained herbs such as senna that act as laxatives and diuretics that can deplete a consumer's potassium levels. Low potassium levels in the blood (hypokalemia) can cause cardiac problems. In January, March and December 2001, Bennett had episodes of atrial fibrillation, an abnormal rapid beating of the heart. Bennett stopped drinking Dieter's Tea in January 2001. A cardiologist diagnosed Bennett's condition as an atrial flutter that degenerates into atrial fibrillation. In September 2002 Bennett underwent an ablation procedure that corrected the problem.

In January 2002, Bennett sued several defendants involved in the production, marketing and sale of Dieter's Tea.[1] He alleged that the defendants knowingly concealed the fact that Dieter's Tea contained dangerous levels and combinations of herbs that acted as laxatives and diuretics, including senna, and failed to warn that Dieter's Tea should not be used for prolonged periods of time. He alleged that his consumption of Dieter's Tea caused his 2001 episodes of atrial fibrillation. The complaint stated causes of action for breach of express and implied warranty, product defect, negligence, fraud and loss of consortium. Two years after the complaint was filed, the defendants moved for summary judgment. They argued that they could negate the element of causation necessary to Bennett's causes of action and that Bennett did not possess and could not obtain evidence of causation. Defendants relied on the deposition testimony of two of Bennett's treating physicians and on Bennett's responses to interrogatories. In opposition to the motions, Bennett submitted an expert witness declaration of a medical doctor who opined that Bennett's consumption of Dieter's Tea caused the atrial fibrillation he experienced in 2001.

The trial court issued a tentative decision denying the motion for summary judgment. Following argument, however, the court continued the hearing to allow the defendants to depose Bennett's expert. After the deposition was taken and the parties submitted supplemental briefs, the trial court granted summary judgment to the defendants because Bennett failed to raise a triable issue of fact regarding causation. The court concluded that Bennett's expert failed to establish a factual foundation for his opinion that Bennett's consumption of Dieter's Tea caused his heart problems.

Discussion

An order granting summary judgment is reviewed de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) Summary judgment is appropriate â€