BIRD, C. J. I dissent from the affirmance of the judgment in favor of defendant Exclusive Prescription Pharmacy Corporation (Exclusive). Under principles of products liability which are firmly established in this state, a retail druggist is strictly liable in tort for the sale of a defective prescription drug. Today’s majority reach the opposite conclusion by retreating from sound principles which, in less turbulent times, were viewed as beyond serious challenge.
Specifically, the majority take a narrow and cramped view of the policies served by strict liability. Several of the most important policies, first articulated in the pioneering opinions of Chief Justice Roger Traynor, are not even mentioned. The majority’s failure to address these policies has unfortunate consequences which go beyond their incorrect conclusion regarding liability.
As a result of this unfortunate opinion, doubts are cast on this court’s past statements recognizing the applicability of the entire doctrine of strict liability to defective prescription drugs. In the process, the very foundations of the doctrine are called into question. I cannot join in a retreat from one of this court’s most firmly established, highly acclaimed and beneficial adaptations of tort law to modern mass production and marketing methods.
[689]The majority also embrace elitist distinctions based on the professional status of retail druggists and, thereby, draw utterly contradictory conclusions regarding the significance of this status. Contradictions aside, professionalism has nothing to do with the central question to be answered here.
The issue is whether retail druggists and pharmacies, which sell prescription drugs to consumers, are engaged primarily in selling a product or in performing a service. The simple answer is that in the marketing of prescription drugs by retail druggists, as in the marketing of automobiles and other consumer products, the sale aspect predominates over any incidental service provided to the consumer. For this reason, and because every one of the policies served by strict liability would be advanced by applying the doctrine to the sale of a defective prescription drug by a retail druggist, I would reverse the judgment in favor of defendant Exclusive.
Chief Justice Tray nor first proposed the doctrine of strict liability in tort as the basis of recovery in defective product cases in his landmark concurring opinion in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 461 [150 P.2d 436]. He cited important public policy considerations that demanded this development in the law.
“Even if there [were] no negligence . . . public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.” (Id., at p. 462.)
In Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049], this court unanimously adopted Chief Justice Traynor’s theory of strict liability in tort. Greenman [690]did not restrict the application of the doctrine to any subclass of products. Writing for the court, Chief Justice Tray nor noted that such liability had been applied to a variety of products ranging from unwholesome food to defective vaccines. (Id., at p. 62.) The court’s formulation of the rule was correspondingly broad in scope. “A manufacturer is strictly liable in tort when an article he places on the market . . . proves to have a defect that causes injury to a human being.” (Ibid.)
While Greenman presented only the question of a manufacturer’s liability for a defective product, the policies underlying the strict liability doctrine apply to others in the marketing chain by which the product reaches the consumer. This was made clear a year later in Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256 [37 Cal.Rptr. 896, 391 P.2d 168]. Chief Justice Traynor’s opinion, again expressing the unanimous view of this court, held that a retailer is strictly liable in tort for defects in products it sells. (Id., at pp. 262-263.)
“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.” (Ibid;1 accord Becker v. IRM Corporation (1985) 38 Cal.3d 454, 459 [213 Cal.Rptr. 213, 698 P.2d 116].)
Vandermark was followed by a string of decisions affirming the importance and scope of the strict liability doctrine. (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 132-134 [104 Cal.Rptr. 433, 501 P.2d 1153] [rejecting the “unreasonably dangerous” gloss of Rest.2d Torts, § 402A]; [691]Luque v. McLean (1972) 8 Cal.3d 136, 141-146 [104 Cal.Rptr. 443, 501 P.2d 1163] [applying strict liability to patent as well as latent defects]; Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 248 [85 Cal.Rptr. 178, 466 P.2d 722] [applying the doctrine to bailors and lessors]; Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 475-477 [85 Cal.Rptr. 629, 467 P.2d 229] [applying strict liability to a defectively designed, as opposed to a defectively manufactured, product]; Becker v. IRM Corporation, supra, 38 Cal.3d at p. 464 [applying the doctrine to lessors of an apartment complex who purchased it after the defective product was installed]; see also Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 252-253 [71 Cal.Rptr. 306] [applying the doctrine to suppliers and distributors]; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 227 [74 Cal.Rptr. 749] [builders of mass-produced homes]; Garcia v. Halsett (1970) 3 Cal.App.3d 319, 324-326 [82 Cal.Rptr. 420] [licensors].)
Although this court has never directly held that strict liability principles apply to prescription drugs, it has clearly endorsed the idea. Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [163 Cal.Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061] addressed the applicability of strict liability to prescription drugs—indeed, to diethylstilbestrol (DES), the drug plaintiff alleges caused her injuries in this case.
“From a broader policy standpoint, defendants are better able to bear the cost of injury resulting from the manufacture of a defective product. . . . [Quotation from Chief Justice Traynor’s concurrence in Escola omitted. (See ante, at p. 689.)] The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects; thus, holding it liable for defects and failure to warn of harmful effects will provide an incentive to product safety. [Citations.] These considerations are particularly significant where medication is involved, for the consumer is virtually helpless to protect himself from serious, sometimes permanent, sometimes fatal, injuries caused by deleterious drugs.” (Sindell, supra, 26 Cal.3d at p. 611, italics added; see Greenman, supra, 59 Cal.2d at p. 62 [vaccines]; Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 432-434 [79 Cal.Rptr. 369] [vaccine]; Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 710-711 [60 Cal.Rptr. 398, 29 A.L.R.3d 988] [anti-cholesterol drug]; Gottsdanker v. Cutter Laboratories (1960) 182 Cal.App.2d 602, 607 [6 Cal.Rptr. 320, 79 A.L.R.2d 290] [vaccine]; Brochu v. Ortho Pharmaceutical Corp. (1st Cir. 1981) 642 F.2d 652, 654-659 [oral contraceptive]; Reyes v. Wyeth Laboratories (5th Cir. 1974) 498 F.2d 1264, 1274, cert, den., 419 U.S. 1096 [42 L.Ed.2d 688, 95 S.Ct. 687] [vaccine]; see generally Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 713-720 [200 Cal.Rptr. 870, 677 P.2d 1147] (dis. opn.); contra Payton v. Abbott Labs (1982) 386 Mass. 540 [437 N.E.2d 171, 189-190].)
[692]The foregoing passage from Sindell and the earlier quotation from Chief Justice Traynor’s concurrence in Escola identify several major policies served by the doctrine of strict liability: (1) providing maximum compensation to helpless victims for the often catastrophic costs of injuries caused by defective products; (2) providing an incentive for better design, manufacturing and testing procedures by placing those costs on the parties responsible for defective products reaching the market, thereby reducing injuries; (3) spreading the costs of injuries that do occur among those who benefit from the marketing and use of the product.
The majority opinion is strangely silent as to these policies, although each is fully applicable to the sale of prescription drugs by retail druggists. In particular, no mention whatsoever is made of SindelVs clear statement on the applicability of strict liability to defectively designed prescription drugs.
Instead, the majority cite with apparent approval opinions from other jurisdictions holding that a pharmacy cannot be held strictly liable for design defects in any prescription drug, absent proof that it failed to warn of known dangers.2 (See maj. opn., ante, at p. 676, citing McLeod v. W. S. Merrell Co., Div. of Richardson-Merrell (Fla. 1965) 174 So.2d 736, 739; Batiste v. American Home Products Corp. (1977) 32 N.C.App. 1 [231 S.E.2d 269, 275]; Bichler v. Willing (1977) 58 App.Div.2d 331 [397 N.Y.S.2d 57, 59-60].)
The opinions cited by the majority rely heavily on comment k to section 402A of the Restatement Second of Torts. Each interprets comment k as exempting prescription drugs from strict liability for design defects on the theory that all such drugs are unavoidably unsafe products which are useful to society.3 That interpretation is squarely inconsistent with decisions of this [693]court spanning a quarter of a century which have affirmed the importance and breadth of the strict liability doctrine. (See ante, at pp. 689-691.)
Specifically, it is inconsistent with SindelVs recognition that strict liability policies are “particularly significant where medication is involved, for the consumer is virtually helpless to protect himself from serious, sometimes permanent, sometimes fatal, injuries caused by deleterious drugs.” (Sindell, supra, 26 Cal.3d at p. 611.) It is also inconsistent with the alternative tests for design defect which this court unanimously adopted in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1],
The Barker court held that strict liability could be imposed on a theory of defective design under either of two tests. “First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.” (Barker, supra, 20 Cal.3d at p. 432.)
The “relevant factors” to be considered under the second test include “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design. [Citations.]” (Id., at p. 431.) Because the focus in a strict liability case is on the condition of the product itself and not on the reasonableness of the defendant’s conduct, Barker directed that the trier of fact should consider the state of knowledge available at the time of trial, rather than restricting itself to what was known or could have been known by the defendant when the product was sold. (See id., at pp. 430, 434.)
The interpretation of comment k in the cases cited by the majority is inconsistent with Barker in at least two respects. First, these cases assume that comment k stands for the proposition that all prescription drugs are unavoidably unsafe products. That assumption appears unfounded.
The sole example given in the comment is the Pasteur treatment for rabies. Noting that the treatment “not uncommonly leads to very serious and damaging consequences,” the comment concludes nonetheless that its marketing and use are fully justified “[s]ince the disease itself invariably leads [694]to a dreadful death . . . .” (Rest.2d Torts, § 402A, com. k.) Thus, the comment weighs the drug’s harmful qualities against its benefits as the only efficacious product for treatment of a fatal disease.
This weighing of benefits and risks is consistent with the approach adopted in Barker. Application of the same weighing approach in a different context could well lead to a different conclusion. For example, the drug at issue might be only one of several formulas designed to treat a condition that, unlike rabies, is non-life threatening. The interpretation of comment k adopted by the majority’s cases, by precluding a meaningful case-by-case weighing of known benefits and risks, is inconsistent with Barker.
However, comment k also states that “new or experimental drugs” should not be subject to strict liability for defective design when, “because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety . . ., but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk.” (Rest.2d Torts, § 402A, com. k.) This reasoning and, to the extent they rely on it, the majority’s cases are at odds with Barker.
As noted above, Barker emphasized that the focus in a strict liability case is on the safety of the product in light of the knowledge available to the trier of fact at the time of trial. (Barker, supra, 20 Cal.3d at pp. 430, 434.) “[T]he fact that the manufacturer took reasonable precautions in an attempt to design a safe product or otherwise acted as a reasonably prudent manufacturer would have under the circumstances, while perhaps absolving the manufacturer of liability under a negligence theory, will not preclude the imposition of liability under strict liability principles if, upon hindsight, the trier of fact concludes that the product’s design is unsafe to consumers, users, or bystanders.” (Id., at p. 434, italics added; see Finn v. G. D. Searle & Co., supra, 35 Cal.3d at p. 722 & fn. 17 (dis. opn.).) The quoted passage from comment k, with its emphasis on the limited medical experience available when a new prescription drug is marketed, is inconsistent with Barker's time-of-trial standard.4
[695]The majority’s uncritical discussion of foreign cases exempting retail druggists from strict liability on the basis of comment k is troubling not so much because it provides the ratio decidendi of their opinion. As noted above, no direct reliance is placed on these cases or the Restatement approach. Rather, it is troubling because it reveals a willingness to deviate from established principles of strict liability where prescription drugs are concerned. At a more fundamental level, it suggests a weakened commitment to the well-established principles of strict liability in general.
Turning to the real question presented by plaintiff’s appeal of the judgment on the pleadings in favor of defendant pharmacy, the majority concede that the retail druggist “is in the business of selling prescription drugs, and his role begins and ends with the sale. His services are rendered only in connection with the sale, and a patient who goes to a pharmacy to have a prescription filled generally is seeking to purchase the drug rather than to obtain the advice of the pharmacist.” (Maj. opn., ante, at p. 679.) That statement should be enough to end the debate with a decision that the pharmacy is strictly liable for the sale of a defective prescription drug.
Under the test which the parties and the majority agree govern here, strict liability applies if the purchase of a product is the “primary objective” or “essence” of the transaction. (Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 978 [95 Cal.Rptr. 381]; see Magrine v. Krasnica (1967) 94 N.J.Super. 228 [227 A.2d 539.) Strict liability is inapplicable only where the transaction is limited to the provision of a service and does not involve the sale of a product (Gagne v. Bertran (1954) 43 Cal.2d 481, 487 [275 P.2d 15] [defendant who performed soil tests not strictly liable]) or where the service aspect predominates and any sale included in the transaction is incidental to the provision of the service (Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1027 [98 Cal.Rptr. 187, 54 A.L.R.3d 250] [hospital that supplied surgical needle which broke during operation not strictly liable]).
Accepting the majority’s characterization of the retail druggist’s business as “a hybrid enterprise, combining the performance of services and the sale of prescription drugs” (maj. opn., ante, at p. 678), it is nonetheless abundantly clear that the sale aspect predominates.
The majority’s own statistics bear this out. Only 22 percent of patients who purchase prescription drugs are counseled by the retail druggist, who spends an average of only one and one-half hours a day performing this service. (See maj. opn., ante, at p. 678.) Thus, in the vast majority of prescription drug sales transactions, the customer receives only a product and no services from the retail druggist.
[696]The predominance of the sale is also reflected by the fixed prices the retail druggist charges for prescription drugs, based on a markup from wholesale cost rather than an hourly fee calculation. (Compare Gagne v. Bertran, supra, 43 Cal.2d at p. 487 [hourly fee charged by soil tester showed that he was selling a service, not a product].)
The majority dismiss as “pure hyberbole” plaintiff’s suggestion that the retail druggist’s role is similar to that of a clerk in an “ordinary” retail store. Yet, the average hardware store clerk probably devotes as much or more time to counseling customers on the applications and proper use of the items offered for sale by the store. I doubt that the majority would have any difficulty concluding that the essence of the transaction between the hardware clerk and the customer is a sale rather than a service.
The majority, diverging from the inquiry into the nature of the transaction, contend that the educational and professional standards which must be met to obtain a pharmacist’s license somehow dictate the conclusion that the retail druggist and the pharmacy are primarily engaged in the provision of a service. (See maj. opn., ante, at p. 678-679.) An almost mystical significance is attributed to the retail druggist’s admitted expertise and professional status.
For example, the majority quote with approval language contained in Carmichael v. Reitz, supra, which suggests that once a defendant has been determined to be a professional, no inquiry into the nature of the transaction at issue is necessary. (See maj. opn., ante, at p. 677, quoting Carmichael v. Reitz, supra, 17 Cal.App.3d at p. 978- [“Where the services sought are professional in character, the [service/sale] distinction applies a fortiori”].) Nowhere do they explain how the retail druggist’s professional status converts the business of selling prescription drugs, in which the provision of services plays a subordinate role, into a business in which the service aspect predominates.
The majority also draw contradictory conclusions from the high standards of knowledge and professional responsibility to which retail druggists are held. On the one hand, they stress the retail druggist’s extensive knowledge of the properties, proper dosages, contraindications and side-effects of prescription drugs as support for the view that the retail druggist is primarily a seller of services rather than products. Yet, if anything, the retail druggist’s expertise supports the imposition of strict liability.
Armed with extensive knowledge of the products he or she sells, the retail druggist may be better equipped than other retailers to identify defective products. This capacity was a prime consideration supporting the applica[697]tion of strict liability to retailers. “[T]he 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.” (Vandermark, supra, 61 Cal.2d at p. 262.)
On the other hand, the majority stress the statutory and professional restrictions that limit the retail druggist’s discretion. Since a retail druggist may not sell a prescription drug except on a doctor’s order and is prohibited from substituting a different drug (other than a generic equivalent), they suggest that it would be unfair to treat retail druggists like other retailers who are not subject to such restraints. This reasoning misses the point.
The retailer’s capacity to select the product sold has never been held to be a prerequisite to the imposition of strict liability. On the contrary, the doctrine has been held to apply to a wholesale-retail tire distributor who supplied whatever tires the manufacturer specified. (Barth v. B. F. Goodrich Tire Co., supra, 265 Cal.App.2d at pp. 248-254.) This rule is consistent with the well-established principle that a retailer is strictly liable even though not equipped to test the product sold. (See Escola, supra, 24 Cal.2d at p. 464.) It is also consistent with the focus of the strict liability doctrine on the product rather than on the conduct of the defendant. (See Barker, supra, 20 Cal.3d at p. 434.)
The majority attempt to dispel any persisting doubts by referring to the language of Business and Professions Code section 4046. (See maj. opn., ante, at pp. 679-681.) They conclude that the Legislature intended this provision to exempt retail druggists and pharmacies from strict liability in the same manner that Health and Safety Code section 1606 exempts all persons involved in the distribution of blood and blood products (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744 [137 Cal.Rptr. 417]; McDonald v. Sacramento Medical Foundation Blood Bank (1976) 62 Cal.App.3d 866 [133 Cal.Rptr. 444]; Shepard v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606 [109 Cal.Rptr. 132]). However, when the two statutes are placed side by side, the differences are striking.
Health and Safety Code section 1606 provides in its entirety as follows: “The procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body shall be construed to be, and is declared to be', for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation participating therein, and shall not be construed to be, and is declared not to be, a sale of such whole blood, plasma, blood products, or blood derivatives, for any purpose [698]or purposes whatsoever.” It is difficult to imagine a clearer expression of an intent to create an exemption under the sale/service distinction established in the cases.
By contrast, subdivision (b) of Business and Professions Code section 4046 declares that the practice of pharmacy 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.” Conspicuously absent from the general language of this provision is a declaration regarding the nature of the specific transaction by which a retail druggist transfers a prescription drug to a customer—much less a declaration that this transaction is always to be construed as the rendition of a service and never as a sale.
The foregoing comparison establishes that when the Legislature intends to exempt an occupational group or activity from strict liability, it knows how to say so. (See Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 249-250 [211 Cal.Rptr. 517, 695 P.2d 1058].) It did so for those engaged in supplying blood and blood products when it enacted the explicit language of Health and Safety Code section 1606.
No such intention can be gleaned from the vague and general language concerning the practice of pharmacy in Business and Professions Code section 4046. No amount of speculation by this court regarding matters of which the Legislature “could not have been unaware when it enacted this provision” (maj. opn., ante, at p. 680) can make up for the absence of a declaration by the Legislature of the intent which the majority seek to attribute to it.
The majority do not stop at speculation regarding the Legislature’s intent. They also engage in the purest form of speculation, attempting to divine the motivation which underlay this supposed intent. It is fair to say that the concerns they settle on are their own rather than the Legislature’s. These concerns range from a fear that imposing strict liability on retail druggists would lead to a scarcity of life-saving drugs to a fear of increased prices. (See maj. opn., ante, at pp. 680-681.) The majority also express concern about the fairness of imposing strict liability on those retail druggists who are small, “independent operators,” particularly because the prescribing doctor and, in some circumstances, the manufacturer, can escape liability. (Id., at p. 681.)
Apart from the lack of evidence that the Legislature shared the majority’s concern when it enacted Business and Professions Code section 4046, these arguments do not support the exemption of retail druggists from strict lia[699]bility. There is no evidence that the imposition of strict liability would cause the supply of prescription drugs to dry up. Such fears are unfounded if one but reviews the experience with other retail sales businesses after they were made subject to strict liability.
For example, automobile dealers have been subject since Vandermark to strict liability for injuries caused by defects in the automobiles they sell. Although injuries from such defects are not uncommon, automobile dealers have continued in business, and there has been no noticeable decrease in the supply of cars for sale.5
As to the concern that prices might rise, this possibility has long been recognized and accepted as an integral part of the strict liability doctrine. (See, e.g., Escola, supra, 24 Cal.2d at p. 462 (cone. opn. of Traynor, J.) [“the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business”]; Becker v. IRM Corporation, supra, 38 Cal.3d at p. 466 [“The paramount policy of the strict products liability rule remains the spreading throughout society of the cost of compensating otherwise defenseless victims of manufacturing defects”].) The same can be said of the claim that it would be unfair to impose strict liability on a retail druggist if the manufacturer is unavailable to answer in damages.6 “If anything, the unavailability of the manufacturer is a factor militating in favor of liability of persons engaged in the enterprise who can spread the cost of compensation.” (Id.; accord Ray v. Alad Corp. (1977) 19 Cal.3d 22, 33-34 [136 Cal.Rptr. 574, 560 P.2d 3]; Price v. Shell Oil Co., supra, 2 Cal.3d at p. 251.) As this court observed in Vandermark, “[i]n some cases the retailer may be the only member of [the overall producing and marketing] enterprise reasonably available to the injured plaintiff. . . . 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 in the course of their continuing business relationship.” (61 Cal.2d at pp. 262-263.)
[700]The majority stress the small size of many pharmacy businesses. However, it cannot be denied that a high volume of prescription drugs are currently marketed by large-scale, modern commercial enterprises. The fact that there continue to be many single drugstores owned by the operating retail druggist does not justify an exception.
As one commentator has noted, “the inception of strict liability is an outgrowth of the food laws and is based on the human consumption theory. There is no reason why this theory of strict liability should not include drugs. This would tend to make the retail druggist an insurer of the safety of the product, even though he had exercised all reasonable care. This liability without fault has been criticized in the past as putting small business men in the constant jeopardy of being run out of business. This argument, however, is very weak in comparison to the opposite result of ‘leaving the patient to pay.’ Strict liability has not made small food dealers extinct, but has forced all food retailers to exert the highest duty of care expected of them. Thus, placing a similar strict liability on the retail druggist will likewise urge him to exercise the highest duty of care commensurate with his superior knowledge and justify the trust placed in him by the public.” (Schmitz, Retail Druggist’s Warranty of Drugs (1966) 15 Clev.-Mar. L.Rev. 285, 291, fns. omitted.)
For all the reasons articulated above, retail druggists and pharmacies should be strictly liable for the sale of defective prescription drugs. The injured consumer should not assume that burden. The judgment on the pleadings in favor of defendant Exclusive should be reversed.
Kaus, J.,* and Broussard, J., concurred.
Vandermark echoed views Justice Tray nor had expressed 20 years earlier in the Escola concurrence. Noting that retailers had long been held strictly liable for defects in the products they sold under the warranty of safety included in the implied warranties of fitness and merchantability, Chief Justice Tray nor had observed in Escola that, as with the manufacturer, the retailer’s duty had a basis in tort law. “This warranty is not necessarily a contractual one [citations], for public policy requires that the buyer be insured at the seller’s expense against injury. [Citations.]” (Escola, supra, 24 Cal.2d at p. 464.) He also noted that the retailer was under an absolute liability to his customer even if the retailer was not equipped to test a product. (Ibid.)
Plaintiff here consciously rejected the “failure to warn” approach. As plaintiff explains, she “has not alleged in this case that DBS was defective because defendants failed to warn of the risks attendant to the use of the drug. Quite [] the contrary, it was plaintiff’s intention to prove that this drug should have never been marketed at all for use in pregnant women. It was ineffective for the indication promoted by Squibb and it caused cancer in the daughters of women who ingested the drug while pregnant. Suffice to say that a drug marketed for use in pregnant women bearing a warning that it is not to be used by pregnant women is conceptually ludicrous. Plaintiff refused to base her case on such thinly constructed logic, but rather elected to establish strict products liability on the manufacturer and retailer of this pharmaceutical product based on its defective design.”
The majority opinion does not rely on these cases or the Restatement’s exemption from strict liability of prescription drugs as direct support for its holding that the pharmacies that sell such drugs are exempt. However, a reluctance to apply strict liability to prescription drugs is one of the opinion’s recurring themes. This reluctance reappears, for example, when the majority permit themselves to speculate that the Legislature meant to exempt retail druggists from strict liability because “the wide availability of a full range of prescription drugs at economical cost outweighs the advantage to the individual consumer of being able to recover for injuries on a strict liability basis rather than to be limited to claims arising from negligence." (Maj. opn., ante, at p. 680; see post, at pp. 698-700.)
Here it bears noting that section 402A and comment k have remained unchanged since their adoption in 1965, only three years after Greenman and one year after Vandermark. The intervening years have witnessed a dynamic evolution in this court’s approach to strict liability, while the Restatement’s formulation has remained static.
This court has “not hesitated to reach conclusions contrary to those set forth in Restatement section 402A.’’ (Cronin, supra, 8 Cal.3d at p. 131; see Price v. Shell Oil Co., supra, 2 Cal.3d at p. 253.) Barker concerned an alleged design defect in a high-lift loader. Accordingly, this court had no reason to discuss comment k or prescription drugs. However, the standard for design defects announced in Barker cannot be squared with the exemption for new prescription drugs advocated in comment k.
PIaintiff dryly offers the following observation in response to the argument of defendant Exclusive’s amici American Pharmaceutical Association and California Pharmacists Association. “It has been said that the key to good appellate advocacy is to be able to convince the court that an adverse ruling means the end of modern civilization as we know it. Amicus APA-CPA’s position is more modest, predicting only the demise of an entire profession and the total unavailability of prescription medicines for the sick. Some might find this view overly pessimistic, and take heart from the fact that, even after the Vandermark decision, both Ford Motor Company and its car dealerships somehow miraculously survived as viable business entities.”
The fact that the prescribing doctor cannot be held strictly liable for a defect in a prescription drug does not provide a sound basis for exempting the pharmacy that sells the drug. The doctor is exempted because, unlike the retail druggist, he or she is not in the business of selling drugs. Rather, the doctor prescribes medication only as part of the effort to effect a cure of the disease for which the patient sought the doctor’s services. (Carmichael v. Reitz, supra, 17 Cal.App.3d at pp. 978-979.)
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.