MURPHY v. SQUIBB SONS INC

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Court of Appeal, Second District, Division 5, California.

Christine A. MURPHY, Plaintiff and Appellant, v. E.R. SQUIBB & SONS, INC., et al., Defendants and Respondents.

Civ. 68341.

Decided: May 30, 1984

Simke, Chodos, Silberfeld & Soll, Inc. and Joseph A. Shaub, Los Angeles, for plaintiff and appellant. Baker & Camusi, William P. Camusi and Philip J. Brimble, Los Angeles, defendant and respondent Exclusive Prescription Pharmacies. Haight, Dickson, Brown & Bonesteel, Robert L. Dickson, Ralph A. Campillo and Roy G. Weatherup, Santa Monica, for defendant and respondent E.R. Squibb & Sons, Inc.

In this appeal, plaintiff, Christine Murphy, seeks review of a judgment on the pleadings entered against her and in favor of defendant, Exclusive Prescription Pharmacy Corp. (hereinafter Pharmacy), as well as a judgment entered after jury trial in behalf of defendant, E.R. Squibb & Sons, Inc. (hereinafter Squibb).

On May 24, 1976, plaintiff filed a complaint for injuries allegedly attributable to her mother's ingestion of the drug, Diethylstilbestrol (also known as Stilbestrol and DES), while her mother was pregnant with her in 1951 and 1952.   Ostensibly, plaintiff, who alleged that her prenatal exposure to the drug DES caused her cancer in the form of clear celled adenocarcinoma, proceeded on the theory that the drug was defectively designed and that pursuant to relevant California case authority,1 the drug's retailer/distributor, defendant Pharmacy, and one of the drug's known manufacturers and/or marketers, defendant Squibb, were both strictly liable in tort for said injuries.

After an amendment to the complaint, the filing of responsive pleadings by both defendants, and various pretrial matters including numerous denied requests for summary judgment, trial was set for February 2, 1982.   On February 3, prior to the selection of a jury, the court granted a then pending motion for judgment on the pleading to defendant Pharmacy.   As a basis for its decision, the court indicated:

“One. In the sale of prescriptive drugs prescribed by the doctor, Exclusive Pharmacy was rendering professional services.  [Citations.]

“The second separate ground is that the consumer in this case was the doctor who prescribed the drug for plaintiff's mother, and the defendant Exclusive Pharmacy was supplying a product or service to the doctor.  [Citation.]

“Thirdly, as a matter of policy, strict liability should not be extended to a pharmacist under the circumstances here.  [Citations.]”

In addition to granting Pharmacy's motion for judgment on the pleadings, the court dismissed plaintiff's attempt to proceed against defendant Squibb on a “Sindell-market share” theory of liability,2 and granted a motion by Squibb for bifurcation of the remaining cause as to the issue of product identification.3

On the following day, plaintiff and defendant Squibb went to trial on the issue of product identification.   After receiving conflicting evidence as to the identification of the drug taken by plaintiff's mother and its manufacturer, a jury determined eleven to one, by way of special verdict, that the Stilbestrol purchased by plaintiff's mother on or about October 12, 1951, was neither manufactured, nor processed, nor distributed by Squibb.

On the basis of the jury verdict, the court rendered judgment in favor of defendant Squibb.   In addition, a separate judgment was entered in favor of defendant Pharmacy, based on the court's prior order granting judgment on the pleadings.   On April 2, 1982, plaintiff appealed from both judgments.

I

THE ASSESSMENT OF NONLIABILITY IN FAVOR OF RETAILER/PHARMACY

Plaintiff's mainstay argument is founded on the supposition that a pharmacist who dispenses drugs to the public at large can be analogized to the sale by a retailer of any other product to the public.   Correlatively, she asserts that under the theories espoused in Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, and their progeny (holding that the manufacturer as well as the retailer of a defective product may be held strictly accountable in tort, for injuries precipitated by said product), a pharmacist and/or his employer who furnishes a defective drug can be held strictly liable for injuries caused thereby.   Albeit plausible as presented above, such reasoning has no basis under existing California authority.

 At the crux of this issue is the determination of whether Pharmacy, a corporation presumably operated by licensed pharmacists, performs a service or purveys a product, or both.   The significance of such a determination is that where the primary objective of a transaction is to obtain or peform a service, rather than acquire title to or use of a product, the doctrine of strict liability is inapplicable.  (See Gagne v. Bertran (1954) 43 Cal.2d 481, 487, 275 P.2d 15;  Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 978, 95 Cal.Rptr. 381.)   As a corollary, it is fundamental that persons providing service for the guidance of others must satisfy only a duty of reasonable care under the given circumstances and cannot be held responsible for injury in the absence of negligence or intentional misconduct.  (Gagne v. Bertran, supra, 43 Cal.2d at p. 487, 275 P.2d 15.)   Finally, “[w]here the services sought are professional in character, the distinction applies a fortiori.”  (Carmichael v. Reitz, supra, 17 Cal.App.3d at p. 978, 95 Cal.Rptr. 381.)

 Undeniably suppliers of a product, pharmacists, have also been resolutely declared by our Legislature to be service-performing professionals.4  This fact, in and of itself, would seem to be determinative of the issue at hand.   The problem, however, is far more complex due to the pharmacists' obvious duality of function.

Acknowledging the Legislature's mandate that pharmacy is a profession, plaintiff steadfastly emphasizes the equally true fact that pharmacists hold a state-sanctioned monopoly in the sale of certain drugs and insists that merchandizing is the druggist's primary function.5  In turn she contends, somewhat inferentially, that failure to extend liability to the retailer of any product, including drugs, obstructs or otherwise impedes a firmly entrenched pro consumer policy embodied in the current law of products liability in California.   Plaintiff explains, “Each party responsible for bringing the product to the consumer gains a financial benefit from the ultimate sale of that product, thereby giving rise to a modern theory of ‘risk-spreading’ which forms the basis of California products liability law.”

Facially supportive of plaintiff's assertion, the court in Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at page 63 stated:  “ ․, 27 Cal.Rptr. 697, 377 P.2d 897.   The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”   Holding Greenman applicable to retailers, and furthering its reasoning, the court in Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 entoned, “Retailers like manufacturers are engaged in the business of distributing goods to the public.   They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.  [Citation.]   In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff.   In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end;  the retailer's strict liability thus serves as an added incentive to safety.   Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.”  (Pp. 262–263, 37 Cal.Rptr. 896, 391 P.2d 168.)

Essentially, plaintiff advocates that the Greenman/Vandermark line of cases espouse a resolute design of including any and all merchandisers of products to the public, as being potentially accountable under strict liability, without regard to whether or not they also provide a service as well, or that the sale of drugs possibly qualifies for special treatment.   Notwithstanding a definite trend in the direction plaintiff now advocates, a review of numerous related authorities dispels said notion, at least to the extent that the product supplied is incidental to a more primary purpose involving the performance of a professional service.

Perhaps first and foremost, it bears noting that claims against pharmacists for the sale of defective drugs based on the doctrine of strict liability have been met with unequivocal rejection in other jurisdictions.   In McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, (1965) 174 So.2d 736, the Florida Supreme Court gave short shrift to a claim of strict liability against a druggist for selling an injurious drug.   It concluded that retail druggists, as in that particular instance, were excepted from liability pursuant to the Restatement Second of Torts, section 402A, comment k.6  Additionally, the court indicated that it considered sufficient safeguards already existent for the consumer,7 and that it was unnecessary to analyze the filling of a prescription as the rendering of a service as opposed to the supplying of a commodity.

In Batiste v. American Home Products Corporation (1977) 32 N.C.App. 1, 231 S.E.2d 269, a case also involving a claim of strict liability against a druggist for dispensing an allegedly defective drug, the North Carolina Court of Appeals followed the lead set by the McLeod court and likewise adopted the rationale provided in section 402A of the Restatement Second of Torts.   Specifically, the court also seized upon comment k of that section to the effect that a prescription drug by its very nature can present a known danger, but that given its counterveiling benefits, “ ‘․ Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.’ ”  (Id., at p. 275.)

Following a similar course of rejecting strict liability claims against pharmacists, courts in New York have likewise applied the Restatement Second of Torts section 402A, comment k.  (Bichler v. Willing (1977) 58 A.D.2d 331, 397 N.Y.S.2d 57;  Ullman v. Grant (1982) 114 Misc.2d 220, 450 N.Y.S.2d 955.)   It need be pointed out, however, that the author of the opinion in Bichler v. Willing, supra, in speaking solely for himself, took the position that the plaintiff's pleadings presented a valid strict products liability cause of action by virtue of the allegation that the retail druggist who sold the drug “ ‘knew or, in the exercise of reasonable diligence, should have known that said drug was unsafe and unfit for use by reason of the dangerous effects' ․ and that he failed to warn of those dangers.”  (Bichler v. Willing, supra, 397 N.Y.S.2d at p. 60.)

Plaintiff challenges the above authorities with a barrage of arguments, most of which are unavailing.   First, she discounts the foreign authorities as being nonreflective of California law, insisting in particular, that at least in the case of Florida and North Carolina, said jurisdictions have a history of “hostility” towards the imposition of strict products liability.   Further, it is argued that unlike California, none of the aforesaid jurisdictions permits recovery from a retailer as opposed to a manufacturer, unless that party in some way affects or adulterates the product himself, as per the “original package doctrine.”   Also alluding to the Bichler court's reliance upon section 402A of the Restatement Second of Torts, and that court's specific notation of the concomitant requirement that a dangerous product be sold with an adequate warning and that the lack of same might indicate a product's defectiveness, plaintiff claims she was completely prevented from ever attempting to establish that defendant, Pharmacy, had a duty to warn.   Lastly, it is suggested that an adherence to the above case law and section 402A of the Restatement Second of Torts is contrary to the holding in Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, and ignorant of the fundamental purpose of holding a retailer strictly liable;  that being risk-spreading.

Mindful of plaintiff's case authority criticisms, but nevertheless believing the Restatement of Second Torts section 402A, comment k to be a viable statement of the law regarding prescription drugs,8 we believe the circumstances fail to warrant strict liability against Pharmacy.   Resolving any remaining doubts, however, we find it difficult, if not impossible, to ignore certain pervasive policy considerations regarding the service performed by pharmacists.   This service should also exempt pharmacists, not unlike their medical brethren, i.e., doctors and dentists, from strict liability claims of the type discussed herein.

The logic motivating the policy of not extending strict liability or liability without fault to providers of services was cogently set forth by our Supreme Court in Gagne v. Bertran, supra, 43 Cal.2d at page 489, 275 P.2d 15:  “The services of experts are sought because of their special skill.   They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence.   Those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence.   They purchase service, not insurance.”   Thus, as is not the case warranting strict liability for products, where a consumer has come to rely upon a high quality, mechanically superior, and nondefective or almost faultless product from a manufacturer,9 absent an express guarantee, the purchaser of a service may only hope for perfection rather than expect it.   Commensurately, the patron of a service provider can only depend upon reasonable care under the circumstances.

Providing a service often entails providing a product, as in the case of a doctor hired to treat an illness whose accomplishment of same necessitates the use of various instrumentalities or drugs.   This fact has been met with an amalgam of judicial responses.   Unfortunately, the various courts have premised their holdings on a myriad of unclear philosophical considerations, including the logic behind the exemption of service providers from strict liability and perhaps to a lesser degree, the logic embodying strict liability for products.   As a consequence, the resulting guidelines are less than uniform;  yet certain trends are well defined.

In Magrine v. Krasnica (1967) 94 N.J.Super. 228, 227 A.2d 539, the court found the doctrine of strict liability inapplicable to services rendered by a dentist even though the hypodermic needle which broke in his patient's jaw appeared to superficially establish the dentist as the retailer and the patient/plaintiff as the ultimate consumer of that product.   Among the reasons given for its decision in declining to hold the dentist strictly liable as a de facto retailer, the court indicated that the dentist was in no better position than his patient to control, inspect and/or discover the defect (id., at pp. 542–543).   Nor did the court find that the dentist actively merchandised the product (id., at p. 543).

Interestingly, the court gave credence to the “risk distributing theory”, wherein it was proffered that the dentist could spread the risk either by obtaining liability insurance or by impleading his supplier or manufacturer;  yet it rejected same.   In so doing, the court commented that such a theory finds its application in situations involving defendants with “substantial assets and volume of business, and a large area of contacts over which the risk can be widely spread.”  (Id., at p. 545.)   Correspondingly, it was determined that even if the dentist or physician obtained insurance covering strict liability for equipment failure, the risk would be spread upon his patient by way of increased fees and that, “As a matter of principle, the spreading of losses to their patients subverts, rather than supports, the policy consideration that the loss should be imposed on those best able to withstand it, i.e., the manufacturer or other entity which puts the article into the stream of commerce.”10  (Id., at p. 546.)

In Newmark v. Gimbel's Incorporated (1969) 54 N.J. 585, 258 A.2d 697, a case that, at first blush, seems to quixotically depart from the holding in Magrine v. Krasnica, supra, 94 N.J.Super. 228, 227 A.2d 539 and make the service/sales distinction somewhat anomolous, the same court reviewed a strict liability action brought against a beauty parlor operator for injuries allegedly caused by an application of a permanent wave solution.   Terming the transaction a “hybrid” between a sale and a service, which it found to be more of the former than the latter, the court held strict liability applicable, owing, inter alia, to the fact that the operator sold or applied the product in the regular course of business and in spite of the fact that the beautician was in no better position to discover the dangerous nature of the product than the patron.

In so ruling, the court carefully distinguished the services rendered by a beautician from those of medical personnel, namely, a dentist or a doctor.   The distinction being that “[t]he beautician is engaged in a commercial enterprise;  the dentist and doctor in a profession.”  (Id., at p. 702.)   Elaborating further, the court indicated:  “The use of instruments, or the administration of medicines or the providing of medicines for the patient's home consumption cannot give the ministrations the cast of a commercial transaction.   Accordingly the liability of the dentist in cases involving the ordinary relationship of the doctor and patient must be tested by principles of negligence, ․ and not by application of the doctrine of strict liability, in tort.”  (Ibid.)

Similar to the dicta found in Newmark, supra, we observed in Carmichael v. Reitz, supra, 17 Cal.App.3d 958, at pages 978–979, 95 Cal.Rptr. 381, that a physician who prescribed an injury-causing drug to his patient could not be held strictly liable for said injury, especially where the principal purpose of the transaction was to obtain a service and not acquire ownership or use of a product.   The court in Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1027, 98 Cal.Rptr. 187, after careful analysis, likewise affirmed said reasoning as to the liability of a hospital whose primary function was to provide medical services.

More recently, Hoven v. Kelble (1977) 79 Wis.2d 444, 256 N.W.2d 379, clearly employed closely related if not identical policy considerations in its decision to deny an application of strict liability to the delivery of medical services.   Notably, that court stressed that “[m]edical and many other professional services tend often to be experimental in nature, dependent on factors beyond the control of the professional, and devoid of certainty or assurance of results.”  (Id., at p. 469, 256 N.W.2d at p. 391.)   To the same extent the court aptly remarked that an application of strict liability to professional medical services “․ would set the standard of performance for the entire medical profession at the zenith of that profession's achievement, a level at which by definition virtually no one could perform all the time.”   (Id., at p. 460, 256 N.W.2d at p. 387.)

Finally, in a case with perhaps the greatest number of factual similarities to the matter sub judice, the Supreme Court of Texas in Barbee v. Rogers (1968) 425 S.W.2d 342 denied a strict liability claim for injuries caused by the sale of prescription contact lenses.   Basing its holding, for the most part, on a factual determination that the lenses were not defective and that they were simply improperly prescribed, the court acknowledged that the activities of the defendants fell “․ between those ordinarily associated with the practice of a profession [optometry] and those characteristics of a merchandising concern.”   (Id., at p. 345.)   This led to an assessment by the court of the argument that defendants' vast merchandising activities 11 destroyed any distinction between the statutorily created professional act of fitting lenses to correct visual defects and the purely commercial act of selling corrective eye devices.   The court rejected the argument suggesting that apart from the commercialized manner of their practice, the defendants were nevertheless practicing optometry, a job in which the acts of prescribing and fitting lenses was described as being “․ an art with many variables and calling for an exercise of judgment by the practitioner.”  (Id., at p. 345.)

The foregoing cases illustrate a manifest reluctance by the courts to extend strict liability to parties offering or involving medical treatment or services.   Moreover, where a few courts have seemingly been inclined towards extending strict liability, they have followed a more traditional approach in deferring to said concept as a legislative function.  (See Hoven v. Kelble, supra, 79 Wis.2d 444, 256 N.W.2d 379, 392.)

In the matter at bench, we find that beyond the far reaching shadow of commercialism now endemic to Pharmacy as a business with a high profit potential, that profession performs a far more precedential service in connection with the treatment of disease and illness exempting it from strict liability.

Prescription drugs are chemicals which pose a real danger to life and health.   Consequently, only persons with special training are allowed to prescribe and handle them.   For the same reason, the sale of drugs is highly regulated which in turn creates an entirely different chain of merchandising than that ordinarily encountered with other products.   Understandably, manufacturers and marketers of prescription drugs aim their promotional efforts at doctors, not patients or pharmacists.   Doctors are presumed to review the relevant medical literature and are presumed to be the sole arbiters as to the use of dangerous pharmaceuticals in being permitted to prescribe same.   The patient relies upon the doctor's judgment, but has no reason to place the same reliance upon the pharmacist.   This factor, above all, might be said to distinguish this situation from the mere sale of any product in which the recognition of a potential danger does not require special knowledge.   Moreover, should the patient be able to rely on the pharmacist's judgment, the latter would, in effect, be practicing medicine.

Both the doctor and the patient place great trust in the professional abilities of the pharmacist to deliver not only the exact formula, but also the exact amount of the drug to the patient as prescribed.   Further, it is the pharmacist's obligation to have specialized knowledge in the area of toxicology, being able to recognize various contra indications for drugs prescribed, inclusive of numerous potentially dangerous drug interactions.12  Hence, the skill of the pharmacist directly safeguards the patient and is perhaps inextricably coupled with the prescriber's treatment of same.   Either as a service provider himself, or as an intermediary, necessary in the treatment offered by a licensed drug prescriber, a pharmacist's learned abilities feature far more prominently than his commercial pursuits in determining his liability.

In line with the aforedescribed functions of a pharmacist, we place great weight upon a similar recognition of same by our Legislature, as apparent from Business and Professions Code section 4046.   Thus, we must reject any application of strict liability to Pharmacy in connection with its sale of prescription drugs, and in so doing find that the trial court's ruling was correct.

II

THE ASSESSMENT OF NONLIABILITY IN FAVOR OF DEFENDANT SQUIBB

Plaintiff's principal thrust as to this issue centers around two pretrial rulings in which the court dismissed plaintiff's attempt to proceed against defendant Squibb under a “market share analysis” pursuant to Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.   Specifically, the court rejected the proffered use of defendant Pharmacy's DES sales activities as the basis for determining defendant Squibb's relevant market share.   In addition the court found an offer of proof by plaintiff as to Squibb's national market share unpersuasive that Squibb's share of the market was substantial.13  Although we might confess partial agreement with plaintiff as to the invalidity of the court's rulings, as we shall explain, the results of the subsequent jury trial on the issue of product identification make our consideration of the rulings purely academic.   In addition, the jury's verdict renders the errors, should they have been found to exist, harmless.

 As indicated above, the purpose of the trial was to allow plaintiff the opportunity of establishing liability under an alternate theory premised upon the identification of the product which allegedly injured her.   Perhaps somewhat unexpectedly, the testimony offered by both sides proved highly contradictory, regarding any claim that defendant Squibb manufactured the actual injury-causing product as opposed to merely the type of injury-causing product.

At trial, plaintiff's mother testified that the drug prescribed by her doctor was called Stilbestrol and that it consisted of pills that were “small and white.”   Further, the pills were described as being round, rather than oval, and uncoated.   The witness could not recall if the pills had any particular markings on them.   On cross-examination the witness acknowledged that she had no personal knowledge from any source concerning the identity of the manufacturer of the DES she took in 1951.   She described the DES pills as being about the size of “a saccharin tablet,” and acknowledged as drawing of the size that she had made at her deposition.   In addition, several saccharin tablets were received in evidence.

In defendants' case, a Squibb employee familiar with Squibb products testified that the DES manufactured and sold by Squibb in the early 1950's had physical characteristics different from those described by the plaintiff's mother.   As part of his description of Squibb's product, the witness indicated that the tablet was white in color, convex in shape, and exactly eleven thirty-seconds of an inch in diameter.   By way of an exemplar, the witness also made a comparison between the DES manufactured by Squibb in 1951 and a saccharin tablet which, at five thirty seconds of an inch in diameter, was less than half the size of the Squibb pill.   Finally, the employee noted that the 1951 Squibb DES in no way resembled the physical characteristics of the saccharin tablet, except as to color.

After all of the evidence was received, the product identification portion of the case was submitted to the jury.   In particular, the jury was asked to respond to two special interrogatories.   In response to the first interrogatory, the jury found that on or about October 12, 1951, the mother of the plaintiff purchased Stilbestrol from the Exclusive Prescription Pharmacy located in Los Angeles.   The second question, “Was the Stilbestrol purchased by plaintiff's mother on or about October 12, 1951, manufactured, processed or distributed by E.R. Squibb & Sons, Inc.?” was met with the singular response of “No.”   As a consequence, the court awarded judgment in favor of defendant Squibb and against plaintiff.

In Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, our Supreme Court dealt at great length with the numerous problems befalling a DES victim's ability to identify, with exactitude, the manufacturer of the particular injury-causing drug.14  As a result of considerable analysis, the court determined it both equitable and feasible to assess liability against possible manufacturers of the drug, dependent upon their relative proportion of the market.   Among other things, the rule thus fashioned, shifted to the defendants (manufacturers with a substantial share of the market), the burden of establishing that they could not have made the injury-producing drug.   The operative language used by the court reads as follows:  “Each defendant will be liable for the portion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiff's injuries.”  (Id., at p. 612, 163 Cal.Rptr. 132, 607 P.2d 924;  emphasis added.)

From our perspective, it would appear that the court deliberately and unambiguously provided some equitable leeway in its equation for a manufacturer of the type of injury-causing drug to exonerate itself, should it prove either that it could not or did not manufacture the actual drug-causing injury.   In support, we note the observations made by the court in the text of its opinion:  “ ․ while defendants do not have means superior to plaintiff to identify the maker of the precise drug taken by her mother, they may be able to prove that they did not manufacture the injury causing substance.   In the present case, for example, one of the original defendants was dismissed from the action upon proof that it did not manufacture DES until after plaintiff was born.”  (Id., at pp. 601–602, 163 Cal.Rptr. 132, 607 P.2d 924.)

 We think it obvious that although defendant had the burden of establishing an exoneration defense, the verdict respecting product identification was tantamount to a satisfaction of that burden.   Thus, in an albeit indirect and unorthodox fashion, defendant Squibb exonerated itself from any so-called market share liability.

In passing, the argument is proffered that whether defendant did not purchase the actual injury-causing drug does not necessarily mean that same could not have produced it.   Under the circumstances presented, we find this argument to be a mere semantic distraction.   Clearly, fairness dictates, at least in this instance, that said comparison presents a distinction without a difference.

Finally, respecting the argument that the instructions contained or created a latent ambiguity, we find that without a properly documented objection to the trial court by plaintiff of same, said ambiguity would be chargable to plaintiff and thus nonappealable.

The judgment is affirmed.

FOOTNOTES

1.   (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897;  Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168;  Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443.)

2.   Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.

3.   In substance, the court held that plaintiff's offer of proof as to the total drug acquisitions made by defendant Pharmacy did not constitute an appropriate frame of reference for determining Squibb's share of that market, and further that plaintiff's offer of proof failed to establish that Squibb has or had a “substantial” share of the appropriate market, “nationally, or otherwise.”

4.   Bus. & Prof.Code, § 4046 provides in relevant part:“(a) In recognition of and consistent with the decisions of the appellate courts of this state, the Legislature hereby declares the practice of pharmacy to be a profession.“(b) 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.”  (Emphasis added.)

5.   Plaintiff urges that “[g]enerally speaking, the job of the retail pharmacist is limited to correctly counting the prescribed amount of pills and [informing the patient of] the proper dosage.”   In support, plaintiff also quotes from an article appearing in the Legal Medical Quarterly:  “The role of the pharmacist, to a great degree, has today been reduced from the careful compounding of prescribed elixirs to interpretation of the doctor's handwriting, counting the requisite number of pills, and typing the directions for use.”  (Haunholter, Negligence and the Pharmacist, (1978) Legal Medical Quarterly, Vol. 2, No 1, p. 2.)The same article notes however, that “[a]lthough today the pharmacist compounds fewer drugs, he dispenses more (than ever before), both in kind and quantity, and the demands that this tremendous number of products place upon him (whether in the retail or hospital environment) has multipled the opportunity for error, and has necessitated the expansion of the pharmacist's educational training.”  (Ibid.)

6.   Section 402A of the Restatement Second of Torts states:“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if“(a) the seller is engaged in the business of selling such a product, and“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.“(2) The rule stated in Subsection (1) applies although“(a) the seller has exercised all possible care in the preparation and sale of his product, and“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”Comment k states:  “Unavoidably unsafe products.   There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.   These are especially common in the field of drugs.   An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected.   Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve.   Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.   The same is true for many other drugs, vaccines and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician.   It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and the use of the drug notwithstanding a medically recognizable risk.   The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

7.   “[T]he rights of the consumer can be preserved, and the responsibilities of the retail prescription druggist imposed, under the concept that ․ a druggist who sells a prescription warrants that (1) he will compound the drug prescribed;  (2) he had used due and proper care in filling the prescription (failure of which might also give rise to an action in negligence);  (3) the proper methods were used in the compounding process;  (4) the drug has not been infected with some adulterating foreign substance.”  (Id., at p. 739.)

8.   We maintain the same favorable opinion towards the Restatement Second of Torts section 402A, comment k, as we did in considering same in Carmichael v. Reitz, supra, 17 Cal.App.3d 958, 986–989, 95 Cal.Rptr. 381.   In the same vein, we find nothing in Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, which invalidates the principles embodied in section 402A as used here.   The rule in Barker merely supplements rather than supplants these in this context.

9.   As Justice Traynor stated in his concurring opinion in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 467, 150 P.2d 436:  “․ Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public.   The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks.  [Citations.]   Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark.”

10.   The court also rejected the argument that the defendant should be held liable because he could implead the manufacturer considering that the defendant dentist did not know from whom the needle was purchased and in light of relevant policy considerations embodied in “the vast body of malpractice law.”   Needless to say, the validity of this reasoning invites grave questions in light of the obvious fact that the dentist is in the best position to determine the identity of his needle supplier.   A similar argument is made by plaintiff in the instant case with respect to Pharmacy's better initial position of determining the manufacturer of the defective drug, especially after the passage of many years.   As to this point, we find it hard not to agree that shouldering the intermediary/retailer with the burden of establishing the existence and/or identity of the manufacturer might effectively vitiate the usual discovery problems associated with this type of a case.   Nevertheless, absent some legislative prescription for the keeping of such detailed records, the issue would appear to be moot.

11.   Defendants were said to employ 125 licensed optometrists, maintain 84 statewide offices and utilize newspaper, television and radio to promote the sale of contact lenses.   In addition, defendants were said to be charging a flat fee for the product, and not for the time of the optometrist and regardless of the nature of the eye problem or the number of visits.  (Id., at p. 344.)

12.   California Administrative Code, title 16, section 1761 provides:“No pharmacist shall compound or dispense any prescription which contains any significant error, omission, irregularity, uncertainty or ambiguity.   Upon the receipt of any such prescription, the pharmacist shall contact the prescriber to obtain the information needed to validate the prescription.”

13.   In the first ruling, the court determined as a matter of law, “ ․ the offer of proof by plaintiff that the premise of defendant Exclusive Pharmacy is an appropriate market cannot be sustained, and defendant's objection is sustained as to that offer of proof.”   In the second ruling, the court concluded that as a matter of law “ ․ plaintiff's offer of proof does not establish defendant Squibb Laboratories has or had a substantial share of the appropriate market, nationally or otherwise.”

14.   Among other considerations, it was noted that a DES affected plaintiff had some 200 known manufacturers of the same generic formulation to choose from, and that this fact was further compounded by the lengthy passage of time prior to the cognizable or outward manifestations of a DES-induced injury.

 STEPHENS, Associate Justice.

FEINERMAN, P.J., and ASHBY, J., concur.