” This case concerns whether plaintiffs, allegedly injured by the drug diethylstilbestrol (DES), have a cause of action against numerous DES manufacturers when they cannot identify the specific manufacturer of the DES ingested. The trial court held that plaintiffs had stated a cause of action when it denied summary judgment as to two drug manufacturers, finding material issues of fact under a theory of alternate liability.
We reject the application of alternate liability. We hold that plaintiffs have stated a cause of action under a theory of recovery announced in this opinion. For the reasons discussed below, we affirm in part and reverse in part.
Trial Court Proceedings
MARTIN v. ABBOTT LABORATORIES, Leagle, 1984683102Wn2d581_1629, October 4, 1984.
Rita Rene Martin was born on October 4, 1962. Her mother, Shirley Ann Martin, obtained a prescription for and ingested DES from May 1962 until the date Rita Martin was born. On January 4, 1980, Rita was diagnosed as suffering from clear cell adenocarcinoma of the vagina. On February 21, 1980, as a result of the cancer, Rita underwent a radical hysterectomy, pelvic node dissection, and partial vaginectomy.
Like many other women who have pursued judicial remedies for injuries they allege were caused by DES, Shirley Martin cannot remember which drug company manufactured the DES she ingested. Moreover, because of the passage of time and because DES was marketed generically, neither Shirley’s physician nor her pharmacist, William Ludwig, Jr., f/d/b/a Lakewood Pharmacy, Inc., can remember which company manufactured or marketed the drug Shirley ingested. The only thing Shirley Martin can substantiate is that she took the drug in 100 mg. doses.
Shirley and Rita Martin sued numerous drug companies on the theories of negligence, strict liability and breach of warranty, for personal injuries, pain, suffering, and destruction of the parent-child relationship. The Martins alleged that all of the pharmaceutical companies were liable for their injuries because of the companies’ concerted or joint action to gain FDA approval and to market DES. The Martins allege this concerted action is established by
- the manufacturers’ collaboration in testing and marketing DES,
- the marketing of DES on a mutually agreed-upon formula,
- and the marketing of DES as a fungible item which led to the selling of DES without reference to the brand prescribed.
The Martins also sued pharmacist Ludwig on the theory of strict products liability for selling an unreasonably dangerous product.
Defendants Summers Laboratories, Inc., and Hill Pharmaceutical, Inc., were dismissed by stipulation. Corvit Pharmaceuticals was never served with process and is not a party to this appeal. Penn Herb Company, Ltd., was dismissed when it became apparent that it was not a proper defendant. Approved Pharmaceutical Corporation and Pharmex, Inc., are in default because they were served but never appeared to defend.
The remaining defendants moved for summary judgment, generally alleging that the Martins’ inability to identify the correct manufacturer of the drug Shirley Martin ingested was fatal to the Martins’ cause of action. The trial judge granted summary judgment to all of the remaining defendants except Stanley Drug Products, Inc., Kirkman Laboratories, Inc., and pharmacist Ludwig.
The trial judge dismissed defendants who had proved they did not market DES in the dosage or form ingested by Shirley Martin, which included Abbott Laboratories; Carnrick Laboratories, Inc.; Eli Lilly and Company; Merck and Company, Inc.; Rexall Drug Company; The Upjohn Company; and Raway Pharmaceutical Company. The trial judge further dismissed those defendants who had proved that they did not market DES for accidents of pregnancy, which included Armour Pharmaceutical Company; Ayerst Laboratories, Inc.; Wyeth Laboratories, Inc.; Breon Laboratories, Inc.; and Winthrop Laboratories. Summers Laboratories, Inc., was dismissed, as the product they manufactured was not marketed in the state of Washington. E.R. Squibb and Sons, Inc., was dismissed on the basis that the retail price charged Shirley Martin for DES purchased from Ludwig’s pharmacy was less than the wholesale price for Squibb’s trademark DES. Stanlabs Pharmaceutical Company was dismissed upon a finding that no material issue of fact existed as to successor liability for the acts of Stanley Drug Products, Inc.
As to the two remaining defendants, the trial judge held that, under the theory of “alternate liability”, there were material issues of fact as to the liability of Stanley Drug Products, Inc., and Kirkman Laboratories, Inc.
Although the trial judge found that there were arguable questions of fact concerning liability for concerted action, the trial judge rejected this theory because it would result in joint and several liability for a number of defendants who could prove that they did not manufacture the DES that caused plaintiffs’ harm, and because he believed the theory of “alternate liability” more fairly accommodated the facts of this case.
The trial court also found material issues of fact as to Ludwig’s liability as the dispensing pharmacist. Finding no just reason for delay, the trial court entered a final judgment pursuant to CR 54(b).
The Martins filed a notice of appeal in this court on March 1, 1983. At the same time, Stanlabs Pharmaceutical Company, Kirkman Laboratories, Inc., and Ludwig filed notices of appeal in Division Two of the Court of Appeals. Both appeals are now consolidated for review here.
The Martins endorse the trial court’s ruling, but continue to argue that they have raised issues of fact which would justify even broader liability under concerted action, enterprise, or market-share theories of liability. They urge this court to reverse the trial court’s order as to those respondents dismissed on summary judgment. The respondents argue that the trial court correctly dismissed the majority of the pharmaceutical companies joined in this action. Respondents contend, among other things, that adoption of any theory that would impose industry-wide liability would hamper the development of new drugs, would impose enormous potential costs on pharmaceutical companies, and would not serve as an incentive to use greater care in producing drugs. Finally, respondents urge the Martins to seek broader liability through legislative enactment.
Stanley Drug Products, Inc., and Kirkman Laboratories, Inc., contend that the trial judge erred in not granting summary judgment in their favor. Their basic contentions are that neither was identified as the actual defendant that manufactured or distributed the DES ingested by Shirley Martin, and the probability that either was such party is very small, in that they are but two manufacturers from a large potential number of defendants. ” …
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