Murphy v. E. R. Squibb & Sons, Inc.

I concur in the majority’s resolution of the issues surrounding the action against Squibb, 1 and in its determination that the pharmacy here is not subject to strict liability. Quite apart from the extent to which pharmacists are expected to provide a service in addition to a product — a question with which not only this court, but also the pharmacy profession is presently grappling — 2 I conclude Bertrán’s exemption from strict liability for “those who sell their services for the guidance of others” (Gagne v. Bertrán (1954) 43 Cal.2d 481, 487 [ 275 P.2d 15 ]) does not, and was never intended to, exempt from such liability one who renders a service incidental to a sale. I also conclude, however, that Vandermark’s extension of strict liability to retailers of consumer products (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256 [ 37 Cal.Rptr. 896 , 391 P.2d 168 ]) does not, and was never intended to, subject to such liability one whose authority to sell a product is strictly regulated by a comprehensive statutory scheme, and who dispenses his prescription drug product only at the direction of another who is himself exempt from such liability.

A person with a broken leg does not…

I concur in the majority’s resolution of the issues involving the claims against Squibb, In addition, I concur in the conclusion reached by the majority that the pharmacy here may not be held strictly liable for alleged defects in a medication that it provided pursuant to a physician’s prescription.

I believe that Justice Gradin’s concurrence, which analyzes why strict liability has no place in this context, is well taken. A pharmacist, whose role in dispensing medication is severely circumscribed by statutory scheme, and whose preparation of a drug may be undertaken only pursuant to prescription, should not be held liable when the prescriber is himself excepted from liability.

Unlike Justice Grodin, however, I find merit in Justice Mosk’s statutory approach as well. Subdivision (b) of section 4046 of the Business and Professions Code states “Pharmacy practice is a dynamic patient-oriented health service that applies a scientific body of knowledge to improve and promote patient health by means of appropriate drug use and drug-related therapy.” The Legislature has also announced that “In recognition of and consistent with the decisions of the appellate courts of this state, [it]…

I dissent from the affirmance of the judgment in favor of defendant Exclusive Prescription Pharmacy Corporation (Exclusive). Under principles of products liability which are firmly established in this state, a retail druggist is strictly liable in tort for the sale of a defective prescription drug. Today’s majority reach the opposite conclusion by retreating from sound principles which, in less turbulent times, were viewed as beyond serious challenge.

Specifically, the majority take a narrow and cramped view of the policies served by strict liability. Several of the most important policies, first articulated in the pioneering opinions of Chief Justice Roger Traynor, are not even mentioned. The majority’s failure to address these policies has unfortunate consequences which go beyond their incorrect conclusion regarding liability.

As a result of this unfortunate opinion, doubts are cast on this court’s past statements recognizing the applicability of the entire doctrine of strict liability to defective prescription drugs. In the process, the very foundations of the doctrine are called into question. I cannot join in a retreat from one of this court’s most firmly established,…

*675 Opinion

We consider issues relating to the liability of a manufacturer and a pharmacy for the production and sale of an allegedly defective drug, stilbestrol (DES). We will decide whether a pharmacy at which the drug was purchased may be held strictly liable for alleged defects in the product (as distinguished from ordinary negligence), and whether a manufacturer which sold 10 percent of DES nationwide may be found to have had a “substantial” share of the market for the purpose of applying the “market share” doctrine enunciated in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [ 163 Cal.Rptr. 132 , 607 P.2d 924 , 2 A.L.R.4th 1061 ].

Plaintiff filed an action for personal injuries allegedly resulting from DES taken by her mother in 1951 and 1952 during pregnancy for the purpose of reducing the risk of miscarriage. The complaint sought damages on the theory of strict liability, alleging that the drug was defectively designed, with the result that plaintiff developed clear cell adenocarcinoma at the age of 23. As defendants, plaintiff joined Exclusive Prescription Pharmacy Corporation (Exclusive) where plaintiff’s mother purchased the DES, and E.R. Squibb & Sons, Inc.…

I respectfully dissent.

On the question of whether a retail pharmacist may be held strictly liable for the sale of a defective prescription drug, I agree with the conclusions of the Chief Justice and have signed her separate dissenting opinion. Unless we are to repudiate the principle set forth by Chief Justice Tray nor in Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262-263 [ 37 Cal.Rptr. 896 , 391 P.2d 168 ], applying strict liability doctrine to retailers of goods generally (see also Rest.2d Torts, § 402A, com. f), if a manufacturer who markets a defective prescription drug may be held strictly liable for resulting injuries, I see no proper basis for exempting a retail pharmacist—certainly *701 a link in the product’s marketing chain—from similar liability. 1 It is surely no more difficult for such a pharmacist to obtain contractual or equitable indemnity from the manufacturer, or to insure against such loss in his own right, than it is for the typical “mom-and-pop” grocery or hardware store to take such steps. While Justice Grodin is correct in noting that doctors and dentists have not been held strictly liable for injuries caused by defective products which they…

We consider issues relating to the liability of a manufacturer and a pharmacy for the production and sale of an allegedly defective drug, stilbestrol (DES). We will decide whether a pharmacy at which the drug was purchased may be held strictly liable for alleged defects in the product (as distinguished from ordinary negligence), and whether a manufacturer which sold 10 percent of DES nationwide may be found to have had a "substantial" share of the market for the purpose of applying the "market share" doctrine enunciated in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [ 163 Cal. Rptr. 132 , 607 P.2d 924 , 2 A.L.R.4th 1061 ].

Plaintiff filed an action for personal injuries allegedly resulting from DES taken by her mother in 1951 and 1952 during pregnancy for the purpose of reducing the risk of miscarriage. The complaint sought damages on the theory of strict liability, alleging that the drug was defectively designed, with the result that plaintiff developed clear cell adenocarcinoma at the age of 23. As defendants, plaintiff joined Exclusive Prescription Pharmacy Corporation (Exclusive) where plaintiff's mother purchased the DES, and E.R. Squibb & Sons,…