Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 68434-1
Title of Case: Ricardo Ruiz-Guzman et al
v.
Amvac Chemical Corporation et al
File Date: 00/00/0000
Oral Argument Date: 02/17/2000
SOURCE OF APPEAL
----------------
Date first document (petition, etc) was filed at Supreme Court: 07/22/1999
JUSTICES
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COUNSEL OF RECORD
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Counsel for Plaintiff(s)
Paul L. Stritmatter
Stritmatter Kessler
413 8th St
Hoquiam, WA 98550
Michael E. Withey
Stritmatter Kessler Whelan Whithey
200 Second Avenue West
Seattle, WA 98119-4204
Marcia M. Meade
Dawson & Meade
1300 W. Dean
Spokane, WA 99201
Patti A. Goldman
Earthjustice Legal Defense Fund
Suite 203
705 Second Ave
Seattle, WA 98104
Brent M. Rosenthal
Trial Lawyers for Public Justice
3102 Oak Lawn Ave
Dallas, TX 75219
Counsel for Defendant(s)
V. L. Woolston
Perkins Coie
40th Fl
1201 3rd Ave
Seattle, WA 98101-3099
Christopher W. Tompkins
Betts Patterson & Mines PS
800 Financial Center
1215 Fourth Ave
Seattle, WA 98161-1090
Glenn S. Draper
Betts Patterson & Mines
2212 Queen Anne Ave N #51
Seattle, WA 98109
Amicus Curiae on behalf of Washington Defense Trial Lawyers
Stewart A. Estes
Keating Bucklin & McCormack
800 5th Ave Ste 4141
Seattle, WA 98104
Emilia L. Sweeney
Lane Powell Spears Lubersky
1420 5th Ave #4100
Seattle, WA 98101
Amicus Curiae on behalf of Washington State Trial Lawyers Assoc
Bryan P. Harnetiaux
517 E 17th Ave
Spokane, WA 99203-2210
Debra L. Stephens
6210 E Lincoln Ln
Spokane, WA 99207-9220
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CERTIFICATION FROM THE UNITED ) No. 68434-1
STATES COURT OF APPEALS FOR THE )
NINTH CIRCUIT )
)
IN )
)
RICARDO RUIZ-GUZMAN, MARTIN )
MARTINEZ, MIGUEL FARIAS and )
IGNACIA FARIAS, ) En Banc
Appellants, )
)
) )
)
AMVAC CHEMICAL CORPORATION, ) a California corporation,
)
and WILBUR-ELLIS COMPANY, )
a California corporation, )
Appellees. )
)
) Filed: August 24, 2000
BRIDGE, J. - Pursuant to RCW 2.60 and RAP 16.16, the United States Ninth
Circuit Court of Appeals has certified to us two questions involving
construction of the Washington product liability act (WPLA), chapter 7.72
RCW. Those questions are:
1. Under the WPLA's "risk-utility" test, may a plaintiff rely upon an
alternative product to show that the challenged product's risks outweigh
the adverse effects of using an "alternative design?"
2. Under Washington
law, can a pesticide be an "unavoidably unsafe product" as described in
comment k to Restatement (Second) of Torts sec. 402A?
We accepted certification of the questions, and now answer both in the
affirmative.
FACTS
The parties have stipulated to certain facts from the underlying case for
purposes of our review. Three of the plaintiffs, Ricardo Ruiz-Guzman,
Martin Martinez, and Miguel Farias (hereinafter referred to collectively as
'plaintiffs'),1 worked for apple growers in Mattawa, Washington, in the
summer of 1993. Among other things, their duties included mixing, loading,
or applying certain pesticides used in their employers' orchards. Until
1993, Eastern Washington apple growers used a 'restricted use' pesticide2
called Phosphamidon to control aphid infestations in their orchards.
However, Phosphamidon's manufacturer chose not to renew the pesticide's
federal registration with the Environmental Protection Agency (EPA) for the
1993 growing season. In spring of that year, defendant Amvac Chemical
Corporation was told by one of its distributors, defendant Wilbur-Ellis
Company, that Washington apple growers wanted to identify a pesticide to
replace Phosphamidon as a means of controlling aphids in their orchards.
Amvac manufactured Phosdrin, which had been used to control aphid
infestations in crops other than apples. Phosdrin was also classified by
the EPA as a 'restricted use' pesticide, and its label bore a federally
approved warning limiting Phosdrin's permissible uses, among them
application in apple orchards, and providing detailed instructions on its
use.
Due to Phosdrin's toxicity, and its anticipated use by Washington apple
growers unfamiliar with it, Amvac worked with the Washington State
Department of Agriculture (WSDA) to develop additional restrictions on
Phosdrin's sale and use in Washington orchards. WSDA adopted these
restrictions, using a fast-track method, known as 'Emergency Rules.' The
restrictions became effective on June 14, 1993. The rules included
restrictions on application techniques and required that training be
available for growers using Phosdrin on apples or pears.
On July 13, 1993, Farias reported symptoms after working with Phosdrin, and
the next day was diagnosed at Quincy Valley Hospital with a mild toxic
reaction to organophosphates. Days later, Martinez and Ruiz-Guzman
separately reported symptoms after working with Phosdrin. They were
admitted to Sunnyside Hospital and treated for organophosphate exposure.
The relevance and admissibility of the following facts submitted by the
Ninth Circuit has not been stipulated to: that on August 30, 1993, the WSDA
temporarily suspended Phosdrin's further use on Washington tree fruit
orchards pending public hearings; that on June 30, 1994, Amvac requested
the cancellation of Phosdrin's registration, and the EPA cancelled it; and
that Phosdrin can no longer be used in the United States.
Plaintiffs originally filed suit against Amvac and Wilbur-Ellis in King
County Superior Court in September 1995, and the lawsuit was removed to the
United States District Court for the Eastern District of Washington.
Following discovery, the district court granted summary judgment, holding,
in part, that in the absence of showing an alternative formulation for
Phosdrin, plaintiffs had not demonstrated a design defect under Washington
law. Alternatively, the court held that Phosdrin was an unavoidably unsafe
product under comment k to Restatement (Second) of Torts sec. 402A.
Plaintiffs appealed, and after briefing and oral argument, the Ninth
Circuit, as noted above, asked this court to answer two questions. We
agreed to do so, and also granted leave to two parties, the Washington
Defense Trial Lawyers and the Washington State Trial Lawyers Association
(WSTLA), to file amicus briefs.
ANALYSIS
I.
The threshold question posed by the Ninth Circuit in this case is whether a
plaintiff may rely upon an alternative product, under the risk-utility test
of the WPLA, to show that a challenged product's risks outweigh the adverse
effects of using an alternative design. Only if this question is answered
in the affirmative is the Ninth Circuit's second question certified to us.
Plaintiffs would have us answer the question in the affirmative, while
Amvac contends that the answer is more complicated than a simple 'yes' or
'no.'
Under the WPLA: 'A product manufacturer is subject to liability . . . if
the claimant's harm was proximately caused by the negligence of the
manufacturer in that the product was not reasonably safe as designed or not
reasonably safe because adequate warnings or instructions were not
provided.' RCW 7.72.030(1) (emphasis added). Plaintiffs do not dispute
the adequacy of the warnings or instructions provided with the Phosdrin,3
but rather argue that 'the product was not reasonably safe as designed . .
. .' Id. Addressing this question requires the application of the risk-
utility test provided for in the WPLA. Under this balancing test, a
product
is not reasonably safe as designed, if, at the time of manufacture, the
likelihood that the product would cause the claimant's harm or similar
harms, and the seriousness of those harms, outweighed the burden on the
manufacturer to design a product that would have prevented those harms and
the adverse effect that an alternative design that was practical and
feasible would have on the usefulness of the product.
RCW 7.72.030(1)(a) (emphasis added).
Plaintiffs argue that
{b}y using the
indefinite article 'a' rather than the definite article 'the' to describe
the product to be compared with the challenged product, the Act, read
literally, permits reliance on the existence or feasibility of a product
different from the challenged product to establish that the challenged
product is 'not reasonably safe.'
Opening Br. of Plaintiffs-Appellants at 8.
Amvac does not entirely disagree, stating that reliance upon an alternative
product should be permitted "when the alternative product incorporates a
design feature that the defendant could have incorporated into the
challenged product, at the time it was manufactured, and thereby prevented
the plaintiff's harm." Response Br. of Defendant-Appellee at 10-11
(emphasis added). Amvac asserts, however, that an alternative product is
not feasible in this instance given that an alternative pointed to by
plaintiffs, Phosphamidon, was commercially unavailable. Amvac notes that
Phosphamidon's manufacturer failed to renew its EPA registration, and that
even had its registration been renewed, another manufacturer would have
held the exclusive rights to Phosphamidon. See Response Br. of Defendant-
Appellee at 20.
We have never specifically described the proof necessary to demonstrate the
existence of an adequate alternative product under RCW 7.72.030(1)(a).
Indeed, both parties cite Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345,
588 P.2d 1346 (1979), 4 as the only published decision where a plaintiff
was allowed to demonstrate a defective design by comparing a challenged
product with that of another product from a different manufacturer.
In Lamon, a flight attendant, Lamon, sought damages for injuries she
sustained falling through an emergency exit hatch that had been left open,
contrary to instructions received during training, by another attendant in
an airplane galley. Id. at 346-47. Lamon alleged that the airplane, a DC-
10, was defectively designed and manufactured, and that the manufacturer,
McDonnell Douglas, had negligently failed to properly warn of a dangerous
condition. Id. at 346. A motion for summary judgment was granted to
McDonnell Douglas. Id. On appeal, this Court reversed. Id. We referred
to an expert's affidavit that had been introduced before the trial court
comparing the escape hatches of a DC-10 and Boeing 747, and wrote that
'{t}he comparison of the two hatches in the affidavit raises the inference
that a reasonable alternative which poses less risk is feasible.' Id. at
352.
Amvac interprets this to mean that Lamon 'simply used the existing 747
design to illustrate the feasibility of a 'hinged' hatch cover that could
have been incorporated into the DC-10 and would have prevented her from
being harmed.' Response Br. of Defendant-Appellee at 10 (emphasis added).
However, this was never stated in the opinion and the plaintiffs disagree
with this analysis. In support of their position they refer us to Ayers v.
Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 818 P.2d 1337 (1991),
wherein it was alleged that a baby product was 'not reasonably safe' under
the WPLA because its packaging contained a warning inadequate to prevent a
baby's harm. Defendants in Ayers had argued that plaintiffs failed to
support their claim by establishing the exact wording of an alternate
warning, and that 'a jury cannot decide that a warning would have prevented
an accident without knowing exactly what that warning is.' Id. at 756. We
held that no such requirement under the WPLA existed, and that 'requiring
claimants in failure to warn cases to establish the exact wording of an
alternative warning would impose too onerous a burden.' Id.
Importing the logic of Ayers, the plaintiffs here argue that 'it would
impose 'too onerous a burden' on plaintiffs in design defect cases to show
not just that other products are adequate substitutes for the defendant's
product, but that the chemical composition in the defendant's product could
be altered to make the product safer and just as effective.' Opening Br.
of Plaintiffs-Appellants at 12; see also Soproni v. Polygon Apartment
Partners, 137 Wn.2d 319, 330, 971 P.2d 500 (1999) (chiding Court of Appeals
for not engaging 'in any overt balancing of the risk of Alpine's product
against its utility' by concluding, in essence, 'that a product is not
unsafe merely because safer designs exist for a given application. . . .').5
Plaintiffs argue in favor of a broad, rather than narrow, interpretation of
the term 'alternative design' as it is used in the WPLA-one including other
products that perform the same function as the challenged product. Reply
Br. of Plaintiffs-Appellants at 10. They assert that this would be in
keeping with the fact that ''a design defect product liability claim is
still a strict liability claim' and 'the focus is still on the reasonable
safety of the product rather than on the reasonableness of the conduct of
the manufacturer.' Id. at 10 (quoting Falk v. Keene Corp., 113 Wn.2d 645,
653, 782 P.2d 974 (1989)); see also Soproni, 137 Wn.2d at 330 (embracing
this holding in Falk).
In Falk, plaintiffs alleged that companies that had manufactured asbestos
were liable for a plaintiff's cancer caused as a result of exposure to that
asbestos. There, we held that a trial court had erred in giving jury
instructions based on negligence, for we found that strict liability, not
ordinary negligence, was the standard adopted by the Legislature in
determining manufacturer liability for defectively designed products. Falk
further noted that the consumer expectations test in the WPLA should be
considered along with its risk-utility test in a product liability case.6
Falk, 113 Wn.2d at 651.
In Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 728 P.2d 585, 78
A.L.R. 4th 139 (1986), we held that 'the availability of an alternative,
reasonably safe design is not a necessary element of a plaintiff's burden
of proof in a product liability action based on defective design.' Id. at
234 (emphasis added). In Couch, a logger was killed as a result of a head
injury caused by a tree falling on him, and his wife sued the manufacturer
of his safety helmet-alleging that it was not reasonably safe under the
WPLA. Presented with a contrary interpretation of the WPLA, we flatly
rejected the argument that a 'plaintiff bears the burden of proving the
existence of a practical and feasible alternative design.' Id. at 239.
This was in keeping with an earlier common law holding that '{a} plaintiff
may . . . establish that a product is unreasonably dangerous by means of
factors other than the existence of alternative design.' Connor v. Skagit
Corp., 99 Wn.2d 709, 715, 664 P.2d 1208 (1983) (emphasis added).7
We did note in Couch, however, that in cases where a plaintiff seeks to
prove liability through the use of only one factor, such as the risk-
utility test instead of the consumer expectations test, that factor must be
established by a preponderance of the evidence. Couch, 107 Wn.2d at 237
n.4 (citing Connor, 99 Wn.2d at 715-17). In Connor, for example, the
plaintiff "chose not to rely on any factors other than the availability of
an alternative, safe design in presenting his case to the jury." Id.
Accordingly, the plaintiffs here, by relying upon the risk-utility test and
not invoking the consumer expectations test, must prove the existence of an
alternative design to Phosdrin. Couch and Connor demonstrate that
Washington strict liability analysis is not a one-dimensional, risk-utility
test that requires proof of a specific design "defect." Baughn v. Honda
Motor Co., 107 Wn.2d 127, 136, 727 P.2d 655 (1986) (noting that we do not
"deem it necessary to apply the type of risk-utility analysis . . . that
specifically requires preliminary proof of 'something wrong'.") (quoting
Perkins v. F.I.E. Corp., 762 F.2d 1250, 1272 (5th Cir. 1985)).
Plaintiffs would like to point to the existence of other aphid-killing
pesticides such as Phosphamidon, to show that safer pesticides could serve
the same purpose as Phosdrin. Although it is true that a competitor held
the patent to Phosphamidon, and allowed its EPA registration to lapse, this
could hardly mean that Amvac was free to introduce an alternative means of
killing aphids with indifference to its greater risk of harming humans--
simply ignoring its statutory burden 'to design a product that would have
prevented those harms . . . .' RCW 7.72.030(1)(a). For example, if the
only means of competing with products that are safer as designed is by
introducing an unreasonably unsafe design then it would obviously be far
better to yield to the safer products. Most products, after all, do not
exist in a vacuum. Lamon, while not directly on point, is helpful here.
Lamon did not require that the plaintiff show that it was feasible to
incorporate the Boeing 747 hatch design into the DC-10. Nor did the
plaintiff's expert's affidavit quoted in Lamon address this. Lamon, 91
Wn.2d at 348-49. Comparing the two hatches simply raised the inference
that a reasonable alternative to the DC-10 hatch which posed less risk was
feasible. Id. at 352.
If another product can more safely serve the same purpose as the challenged
product at a comparable cost and in a similar manner, a jury should be able
to conclude that the risks of the challenged product outweigh its utility.
Persuasive authority for this position can be found in the law of products
liability as stated in the new Restatement (Third) of Torts sec. 2 cmt. f.,
at 24 (1998), which allows a plaintiff to establish an alternative safer
design through 'other products already available on the market {that} may
serve the same or very similar function at lower risk and at comparable
cost. Such products may serve as reasonable alternatives to the product in
question.' (Emphasis added.) See also, e.g., Restatement (Third) of Torts
cmt. d., at 19 (1998) ('How the defendant's design compares with other,
competing designs in actual use is {also} relevant to the issue of whether
the defendant's design is defective.').
Amvac argues that to allow admission of alternative product design without
proving that the design could have been incorporated into the challenged
product would be to absolve pesticide applicators for reckless or negligent
decision-making involving the challenged pesticide. See Response Br. of
Defendant-Appellee at 22. However, this is no truer than if Amvac's own
test were met; moreover, it would not logically follow if those applicators
were not provided in the first place with pesticides 'not reasonably safe
as designed . . . .' RCW 7.72.030(1). Indeed, Amvac errs on the side of
effectively placing all responsibility for injuries caused by Phosdrin and
like products upon their users, which is quite in contrast to the strict
product liability regime provided for by the WPLA. There, after all, 'the
focus is . . . on the reasonable safety of the product.' Ayers, 113 Wn.2d
at 653 (emphasis added). As we have noted, 'Once the product is found to
be not reasonably safe . . . , the manufacturer is liable for harm
proximately caused by the design defect.' Id. at 651 (emphasis added).
Our answer to the first question certified to us is that a plaintiff may
satisfy the requirement of showing an adequate alternative design by
showing that other products can more safely serve the same function as the
challenged product.8
II.
The second question certified to us, upon an affirmative answer to the
first, asks whether, under Washington law, a pesticide can be an
'unavoidably unsafe product' as described in comment k to Restatement
(Second) of Torts sec. 402A.
Section 402A establishes strict liability for ''{o}ne who sells any product
in a defective condition unreasonably dangerous to the user or consumer or
to his property . . . .'' Ulmer v. Ford Motor Co., 75 Wn.2d 522, 530, 452
P.2d 729 (1969) (quoting approvingly Restatement (Second) of Torts sec.
402A). However, there is an exception for 'unavoidably unsafe products,'
which reads as follows:
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 of 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
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 well known but apparently reasonable risk.
Restatement (Second) of Torts sec. 402A cmt. k (1965). There is no debate
that this exception has been expressly adopted by this court. Terhune v.
A.H. Robins Co., 90 Wn.2d 9, 12, 577 P.2d 975 (1978).
We should note that the comment k exception to strict liability was not
expressly provided for by the Legislature in adopting the WPLA, although it
is implicit that products that are "unavoidably unsafe" are not products
that ever could be "reasonably safe as designed . . . ." RCW 7.72.030(1).
Because comment k was not expressly provided for in the WPLA, we must be
sparing in its application lest we defeat the letter or policy of the WPLA.
The application of comment k by this court has been confined to a trilogy
of cases involving medical products available only through a physician. In
the first case, Terhune, we held that the manufacturer of a contraceptive
device, the Dalkon Shield, would not be liable for injuries caused by its
product if adequate warnings and instructions to prescribing physicians
were supplied. Terhune, 90 Wn.2d at 13-14. In such a case, '{w}here a
product is available only on prescription or through the services of a
physician, the physician acts as a 'learned intermediary' between the
manufacturer or seller and the patient.' Id. at 14. The principles of
comment k 'have their basis in the character of the medical profession and
the relationship which exists between the manufacturer, the physician and
the patient.' Id. at 16.
The second case in which comment k was applied, Rogers v. Miles Labs., 116
Wn.2d 195, 802 P.2d 1346 (1991), likewise involved a medical product.
There, we were confronted with another federal certified question, one
asking whether strict liability was applicable to a for-profit
pharmaceutical company for injuries that allegedly resulted from the
processing and supplying of HIV-contaminated blood products. Id. at 197.
We wrote that
{c}omment k justifies an exception from strict liability by focusing on the
product and its relative value to society . . . . Some products are
necessary regardless of the risks involved to the user. The alternative
would be that a product, essential to sustain the life of some individuals,
would not be available-thus resulting in a greater harm to the individual
than that risked through use of the product. Blood and blood products fall
into this category.
Id. at 204 (emphasis added).
The final case in this trilogy, Young v. Key Pharm., Inc., 130 Wn.2d 160,
922 P.2d 59 (1996), was one where a Court of Appeals' decision held that
comment k applied to all prescription drugs was affirmed, in the absence of
a constitutional majority, by a 4-4 plurality vote.9 The plurality adopted
the Court of Appeals' decision, quoting as follows:
'While there is language in comment k that can be read otherwise, the focus
of both Terhune and Rogers is such that we conclude that . . . a separate
determination of whether a product is unavoidably unsafe need not be made
on a case-by-case basis if that product is a prescription drug.'
Id. at 170 (footnote omitted) (quoting Young v. Key Pharm., Inc., No. 33070-
5-I, slip op. at 2-8 (Wash. Ct. App. June 19, 1995)). The Court of Appeals
had also noted that ''it is precisely because they are unavoidably unsafe
to some degree that they are prescription drugs.'' Id. (citation
omitted). The dissent agreed that '{t}he rationale underlying the exception
is the recognition that certain products are incapable of being made safe
for their intended and ordinary use, but the marketing of such products is
justified despite the medically recognizable risk because of the social
utility of having the product available.' Id. at 181 (Madsen, J.,
dissenting) (emphasis added.). The issue upon which the dispute between
the Young plurality and dissent was centered was on the failure to warn,
not on the standard to be applied in defining comment k products.
Both Amvac and the WSTLA agree that the plurality view in Young 'would
treat as equal a variety of prescription drugs that have vastly differing
social utility,' Amicus Br. of WSTLA at 17 (emphasis added), and that this
is a result arguably incongruent with the social utility reasoning in
Terhune and Rogers. Yet, it is not appropriate for us to use this case to
accept the WSTLA's invitation to 'reject the view that all prescription
drugs are exempted from strict liability analysis' and exchange it for a
product-by-product approach. Id. The determination to be made here is the
application of pesticides as a product group to comment k protection. In
answering federal certified questions, we do not seek to make broad
statements outside of the narrow questions and record before us. Crossler
v. Hille, 136 Wn.2d 287, 289, 961 P.2d 327 (1998).
By its own terms, comment k is especially applicable to medical products.
The exceptions for medical products recognize the unique protection
provided to the consumers of such products by the prescribing physician
(and/or pharmacist) intermediary. '{I}t is safe to surmise that ordinarily
a physician will not prescribe or utilize a product which he does not
consider reasonably safe, and that he will take into account the amount of
testing, or lack thereof, which has been done with respect to the product.'
Terhune, 90 Wn.2d at 16. A physician possesses the medical training to
assess adverse health effects of a medical product and to tailor that
assessment to a particular patient. As we noted in Terhune, the physician
'is concerned with the total health and physical well-being of his patients
. . . . Certainly the insertion of the Dalkon Shield requires a
physician's services, his knowledge and his skill. . . . {I}t is he who
supplies and inserts the device.' Id. at 15.
In contrast, it may not be safe to surmise that a commercial grower-as the
analogous intermediary between manufacturer and ultimate user-will
independently evaluate the risks of use of a particular pesticide. While
it is true that a pesticide such as Phosdrin is highly regulated, not
unlike a prescription drug, analogizing certified pesticide dealers and
applicators to medical professionals is probably unwarranted. Moreover,
the only two outside authorities that we are referred to in which the
application of comment k to pesticides was at issue refused to apply
comment k outside the realm of medical products. See Arkansas-Platte &
Gulf Partnership v. Dow Chem. Co., 886 F. Supp. 762, 767 (D. Colo. 1995);
Kennan v. Dow Chem. Co., 717 F. Supp. 799, 812 (M.D. Fla. 1989).
While pesticides are inherently toxic by definition, including pesticides
as a class in comment k would free a pesticide manufacturer from any
incentive to make its pesticides safer to humans because they could never
be made 'safe.' Thus, human safety would be essentially irrelevant in
composing the toxicity of a pesticide. Certainly, disregard for human
health in the application of comment k would extend that comment's reach
very far from our initial holding that '{t}he principles stated in comment
k . . . . have their basis in the character of the medical profession and
the relationship which exists between manufacturer, the physician and the
patient.' Terhune, 90 Wn.2d at 16. However, a determination that
pesticides can never be unavoidably unsafe products within the ambit of
comment k would seem to defy common sense.10 Consistent with the social
utility reasoning of Rogers, a product-by-product approach to the
application of comment k is warranted.
Under this approach, not all products that cannot be made safer would
qualify as 'unavoidably unsafe' products entitled to comment k's
protection. Instead, the defendant manufacturer of a challenged product
would have to demonstrate that an inherently dangerous product is also
'necessary regardless of the risks involved to the user.' Rogers, 116
Wn.2d at 204. This would involve, as we held in Rogers, 'focusing on the
product and its relative value to society . . . .' Id. (emphasis added).
Thus, despite the fact that its product cannot be made safer for its
intended use, a pesticide manufacturer could demonstrate the product serves
an important enough function (e.g., in the realm of food production) so as
to justify its unavoidable risks.
Where a claimant under the WPLA could demonstrate the existence of safer
alternative pesticides that could serve the same purpose with less risk of
harm, the challenged pesticide's social value could be achieved through the
use of another pesticide. Accordingly, the challenged pesticide could not
be deemed 'necessary regardless of the risks involved to the user.'
Rogers, 116 Wn.2d at 204. There need not be a finding of overwhelming
social utility. Killing aphids on apple trees might not be of overwhelming
social utility, but it might be shown to be substantially important to
preserve an apple crop. The test adopted by a federal court, applying
Colorado law, is helpful:
For the rule precluding liability for unavoidably unsafe products to apply
to a given product, the product's utility must greatly outweigh the risk
created by its use, the risk must be a known one, the product's benefit
must not be achievable in another manner, and the risk must be unavoidable
under the state of knowledge existing at the time of manufacture.
Arkansas-Platte & Gulf Partnership, 886 F. Supp. at 767 (citing Camacho v.
Honda Motor Co., 741 P.2d 1240, 1244 n.5 (Colo. 1987), cert. dismissed, 485
U.S. 901 (1988)). This analysis is likewise consistent with our holdings
in Terhune and Rogers.
Since we hold that the question of whether a pesticide is governed by
comment k is to be determined on a product-by-product basis, as opposed to
a blanket exemption like that for medical products, it necessarily follows
that the trier of fact should determine a pesticide's value to society
relative to the harm it causes. For example, here the parties debate over
whether Phosdrin was primarily used to improve the cosmetic appearance of
the apples or to preserve crop yields. This is a question for a jury to
resolve.11
Our answer to the second question certified by the Ninth Circuit is 'yes,'
a pesticide can be an 'unavoidably unsafe product' as described in comment
k to Restatement (Second) of Torts sec. 402A (1965), if its utility greatly
outweighs the risks posed by its use.
CONCLUSION
We answer both questions certified by the Ninth Circuit in the affirmative.
Under the WPLA's risk-utility test, a plaintiff may rely upon an
alternative product to show that the challenged product's risks outweigh
the adverse effects of using an alternative design. A pesticide can be an
"unavoidably unsafe product" as described in comment k to Restatement
(Second) of Torts sec. 402A (1965), but only if its utility greatly
outweighs the risks posed by its use.
1The remaining plaintiff, Ignacia Farias, is Miguel's wife.
2'Restricted use' pesticides must be registered with both the Environmental
Protection Agency (EPA) and the Washington State Department of Agriculture.
Pesticides so classified by the EPA may be distributed only by a licensed
pesticide dealer to a certified pesticide applicator or his or her duly
authorized representative. See WAC 16-228-164.
3The parties dispute whether the plaintiffs' arguments before the district
court and before the Ninth Circuit have been consistent, with Amvac
contending that the plaintiffs argued inadequacy of warnings or
instructions in the district court and then argued unsafe design before the
Ninth Circuit. This argument is for the Ninth Circuit to resolve, and is
irrelevant to the resolution of the specific questions certified to us.
See Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 577, 964 P.2d 1173
(1998) ('{W}hen a federal court certifies a question to this court, this
court answers only the discrete question that is certified and lacks
jurisdiction to go beyond the question presented.') (citing Louisiana-
Pacific Corp. v. Asarco, 131 Wn.2d 587, 604, 934 P.2d 685 (1997)).
4Although Lamon predates the WPLA's enactment, it still has 'continuing
vitality.' Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 329 n.5,
971 P.2d 500 (1999).
5Perhaps tellingly, Amvac makes far more of the dissent in Soproni than its
majority. Defendant-Appellee Amvac Chemical Corporation's Response to the
WSTLA at 5-6, 7-8.
6The consumer expectations test is as follows:
In determining whether a product was not reasonably safe under this
section, the trier of fact shall consider whether the product was unsafe to
an extent beyond that which would be contemplated by the ordinary consumer.
Falk, 113 Wn.2d at 650 (quoting RCW 7.72.030(3)).
7Connor's holding 'still prevails' under the WPLA. Couch, 107 Wn.2d at
239.
8The availability and feasibility of such alternatives to Phosdrin, the
subject of debate between the parties, is a question for the Ninth Circuit,
not this Court, to resolve as part of the underlying case. Kitsap County,
136 Wn.2d at 577. Plaintiffs suggest that the alternative design or
product must be 'technologically achievable and economically viable.'
Plaintiffs-Appellants' Br. in Answer to Brs. of Amici Curiae. We agree
that this standard is in keeping with the statutory requirement that an
alternative design be 'practical and feasible . . . .' RCW 7.72.030(1)(a).
9Justice Talmadge did not participate.
10Plaintiffs point out that the weight of comment k commentary addresses its
applicability to medical products alone. Plaintiffs-Appellants' Br. in
Answer to Brs. of Amici Curiae at 17-18. However, the comment, by its own
terms, applies to all 'unavoidably unsafe products.' Restatement (Second)
of Torts sec. 402A cmt. k (1965). Thus, its scope is not limited solely to
the examples it provides to illustrate that such products 'are especially
common in the field of drugs.' Id. (emphasis added).
11In Lewis v. American Cyanamid Co., 155 N.J. 544, 715 A.2d 967 (1998), a
case involving a design defect claim involving an insecticide propellant's
flammability, the New Jersey Supreme Court found 'disputed issues of
material fact regarding the practicality and feasibility' of an alternative
propellant. Id. at 979. The defendant manufacturer sought 'immunity from
liability resulting from its decision to use a more flammable propellant
than one that was a suspected teratogen and ozone-depleter.' Id. at 980.
The court wrote that '{s}o fact sensitive a determination . . . is
particularly amenable to risk-utility analysis by a jury.' Id.
Accordingly, it held as follows:
{W}e conclude that plaintiff has established a prima facie case that P-22
was a practical and feasible alternative that would have reduced the
flammability of the foggers' propellant. . . . We take no position,
however, on the issue of whether plaintiff has met his burden. This is an
issue for the jury to decide at retrial.
Id.