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

GRODIN, J.

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 — ²I 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 visit an orthopedist in order to purchase plaster, nor does one with crooked teeth seek out an orthodontist to acquire stainless steel wire, although both might acquire those items from such a professional during the course of treatment. “Sale” of the plaster or wire will not subject the doctor or dentist to strict liability for defects in those products because that “sale” is merely incidental to the patient’s real purpose—obtaining a professional service. (Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 977-979 [95 Cal.Rptr. 381]; Magrine v. Krasnica (1967) 94 N.J.Super. 228 [227 A.2d 539, 543].)

On the other hand, one normally does not patronize a pharmacist merely to ask for prescription advice. Although the pharmacist might well discuss with a customer such matters as whether a particular prescription drug may adversely react with other prescription drugs he is taking, or whether continuing to take a particular prescription drug will cause accumulation of excessive quantities of dangerous substances in his body, such a service would be rendered incidental to the real reason for the customer’s visit-acquisition of a prescribed drug. Because the pharmacist’s service (to the extent it exists in a given case) is merely incidental to a sale, the rendering of such a service cannot exempt a pharmacy from strict liability.

Nevertheless, I conclude that nothing in our previous decisions, nor the decisions of any other state, either directly or by analogy supports extension of strict liability to retail pharmacists who sell prescription drugs.

A pharmacist is not free to sell a prescription drug to anyone who merely requests the product and offers payment; unlike a car dealer or a tire vendor, a pharmacist may dispense his prescription drugs only after being authorized to do so by a prescribing physician or similar person. (Bus. & Prof. Code, § 4036, subd. (a).) In preparing the drug and selling it to his customer on the prescriber’s authorization, the pharmacist simply carries out what the prescriber orders. Although he has some limited discretion in the matter— i.e., he may (i) under certain circumstances, fill the prescription with a less costly substitute containing the same ingredients,³ or (ii) consult the prescribing physician if he believes the prescription is mistaken or otherwise inappropriate in light of the patient’s other prescriptions—final authority for ordering the prescription filled still rests exclusively with the prescribing physician. At the same time, the physician, whose responsibility it is to properly diagnose, counsel, prescribe and warn his patient about proper use and risks associated with the prescribed drug, is exempt under Bertrán from strict liability for defects in the drug he orders the pharmacist to dispense. (Carmichael v. Reitz, supra, 17 Cal.App.3d at pp. 977-979.) In this situation—in which policy considerations intervene to exempt the primarily responsible actor (the prescriber) from strict liability—basic fairness and common sense dictate it would be fundamentally unfair to treat pharmacists like any other retailer of any other product.⁴

I conclude strict liability should not apply in the case of a retail pharmacist, whose authority to sell prescription drugs is closely regulated by statute, and who dispenses his product only at the direction of a prescriber who is himself exempt from such liability.⁵

1 Justice Kaus, in his dissent, advocates modification of Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [163 Cal.Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061] to eliminate the “substantial share” requirement. Whatever merit there may be in that position, I am not prepared to adopt it in this case, where it has been neither briefed nor argued.

2 See Brushwood, The Informed Intermediary Doctrine and the Pharmacist’s Duty to Warn (1983) 4 J. Legal Med. 349 (describing the “evolving” service-oriented pharmacy practice) and articles discussed and cited in footnotes 7-11, and text and footnotes at footnotes 71-78, 97-101; Greenfield & Hirsh, Pharmacist Liability in Tort, 1983 Med. Trial Tech. Q. 434, 453 (concluding that “the modern pharmacist’s role in the marketing of drugs is in a state of flux”).

4 No other retailer who has been subjected to stringent statutory restrictions on his authority to sell a product has been subjected to strict liability for defects in the product sold. Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228 [71 Cal.Rptr. 306], in which strict liability was applied to a wholesale-retail tire distributor that sold whatever tires the manufacturer specified, is plainly distinguishable. There, the “restriction” on the retailer’s authority to sell was imposed not by a rigid and comprehensive statutory scheme, but by a private contract that, if the retailer so desired, could presumably have been renegotiated or amended.

5 In reaching this conclusion I, like the majority, express no view whatsoever on the applicability of strict liability principles to the manufacturer of a prescription drug.

3 (Bus. & Prof. Code, § 4047.6.) Under subdivision (c) of that section, the pharmacist who makes such a selection incurs no additional liability over that to which he would be otherwise subject.