noting that the purpose of a similar statute that defined the distribution or use of blood as a service and not a sale “is to avoid application of the doctrine of strict liability ... thereby promoting the constant availability of an adequate supply of blood”
How later courts described this case
- noting that the purpose of a similar statute that defined the distribution or use of blood as a service and not a sale “is to avoid application of the doctrine of strict liability ... thereby promoting the constant availability of an adequate supply of blood”
- determining that a pharmacist’s conduct in filling a prescription is a service, and thus a pharmacy is immune from strict liability
- refusing to hold pharmacists liable under the strict product liability doctrine because “the pharmacist is engaged in a hybrid enterprise, combining the performance of services and the sale of prescription drugs”
- “[In Sindell we] held that if the plaintiff joined in the action the manufacturers of a substantial share of the DES which her mother might have taken, the injustice of shifting the burden of proof to defendants to exonerate themselves would be significantly diminished.”
Written by the judges who cited it.
The opinion
KAUS, J.
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 incidentally use in performing their service on patients (ante, p. 685 (cone. opn. of Grodin, J.)), I know of no authority which suggests that the retailer who sells a doctor or dentist a defective surgical needle or defective orthodontic wire should escape strict liability for a resulting injury to the patient simply because the defective product has been used in the course of a professional service.
I also disagree with the majority’s conclusion on the separate issue of whether plaintiff has stated a cause of action against the drug manufacturer under the “market share” doctrine set forth in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [ 163 Cal.Rptr. 132 , 607 P.2d 924 , 2 A.L.R.4th 1061 ]. Although I recognize that Sindell purported to qualify the application of the market share doctrine by the requirement that plaintiff join the manufacturers of a “substantial share” of the stilbestrol (DES) market ( 26 Cal.3d at p. 612 ), frankly I never could see how that qualification can logically be squared with the decision’s general market share theory. 2 As I understand the market share concept, under that doctrine—in contrast, for example, to the doctrine of Summers v. Tice (1948) 33 Cal.2d 80 [ 199 P.2d 1 , 5 A.L.R.2d 91 ] or Ybarra v. Spangard (1944) 25 Cal.2d 486 [ 154 Cal.Rptr. 687 , 162 A.L.R. 1258 ]—each manufacturer can only be held liable for that proportion of the plaintiff’s damages which equals the particular manufacturer’s market share of the DES that was manufactured and sold. (Sindell, supra, 26 Cal.3d at p. 612 .) Because the manufacturer’s liability is limited in this fashion, I do not see how a particular manufacturer is harmed by the plaintiff’s failure to join more manufacturers in the lawsuit; any particular defendant bears the same liability no matter how many or how few other manufacturers are joined. Thus, I do not think a plaintiff should be deprived of the limited recovery which Sindell allows against a *702 particular manufacturer simply because, for one reason or another, she has not been able to amass the manufacturers of a “substantial share” of the DES drug.
emphasize that the retailer’s liability should simply be coextensive with that of the drug manufacturer. If—for reasons not fully explored in existing California cases—it is determined that, in a particular context, a drug manufacturer should not be held strictly liable for harm caused by a prescription drug, the retailer too should escape strict liability. But when the manufacturer may properly be held strictly liable—as would clearly be the case, for example, if it marketed an impure batch of a prescription drug—the retailer of the defective drug should also be strictly liable.
At least one academic commentator, who strongly supports the imposition of tort liability on a market share theory, has expressed similar misgivings about Sindell’s “substantial share” of the market requirement. (See Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases (1982) 68 Va.L.Rev. 713, 725-726.)