1985 DES Case: Murphy v. E.R. Squibb & Sons, Inc.

Abstract

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).

MURPHY v. E.R. SQUIBB & SONS, INC., Leagle, 198571240Cal3d672_1674, December 30, 1985.

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. (Squibb). The first cause of action alleged that Squibb was the manufacturer of the DES used by plaintiff’s mother. The second count, added after our decision in Sindell, alleged that plaintiff was unable to identify the manufacturer, but that Squibb supplied a “substantial percentage” of DES for use by pregnant women to prevent miscarriage.

Before jury selection began, the court granted Exclusive’s motion for judgment on the pleadings, holding that a pharmacy may not be held strictly liable for dispensing a prescription drug. The court determined that Exclusive rendered a professional service in supplying the DES, that the consumer of the drug was the doctor who prescribed it rather than plaintiff’s mother, and that as a matter of policy the doctrine of strict liability should not be extended to a pharmacy.

In support of her second cause of action plaintiff offered to prove that Squibb sold 10 percent of the DES in the national market. The court ruled that as a matter of law 10 percent of the national market was not a “substantial percentage” within the meaning of Sindell, and it dismissed the second cause of action. The matter went to trial against Squibb on the first cause of action alleging that Squibb had actually supplied the DES taken by plaintiff’s mother. The parties introduced evidence on whether Squibb was the manufacturer of the offending drug, and the trial court instructed the jury that plaintiff had the burden of proof on this issue. The jury returned a special verdict, finding that plaintiff’s mother had purchased the DES at Exclusive, and that the DES which she purchased was not manufactured by Squibb. The trial court entered judgment in favor of defendants, and plaintiff appeals.” …

… read the full paper MURPHY v. E.R. SQUIBB & SONS, INC., on Leagle.

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