1.Under the Washington Product Liability Act’s “risk-utility” test, may a plaintiff rely on 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 § 402A?


Procedural History

This case comes to the Court through questions certified by the United States Court of Appeals for the Ninth Circuit in an order filed on July 20, 1999.

Plaintiffs-Appellants Ricardo Ruiz Guzman, Martin Martinez, Miguel Farias and Ignacia Farias filed this suit on September 12, 1995 in Washington Superior Court against Defendants-Appellees Amvac Chemical Corporation and Wilbur-Ellis Company alleging that they had sustained injuries as a result of Phosdrin, a pesticide manufactured by Amvac and sold by Wilbur-Ellis. Plaintiffs alleged, inter alia, that Amvac had marketed and sold a defectively designed product which caused their injuries. Plaintiffs sought to prove that Phosdrin was defectively designed by, inter alia, proving that safer alternative products were available. Amvac, inter alia, denied that the design of Phosdrin was defective and that plaintiffs could show a safer, effective alternative design for Phosdrin.

Defendants removed the case to federal court and the court transferred the case to the United States District Court for the Western District of Washington. After the close of 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 and, alternatively, that Phosdrin was an unavoidably unsafe product under comment k to Restatement (Second) of Torts § 402A. Plaintiffs timely appealed, and after briefing and oral argument, the Ninth Circuit certified questions of Washington law to this Court.

Factual Summary

The facts relevant to the Court’s resolution of the certified questions are contained in the Stipulation filed pursuant to Wash. Rev. Stat. § 2.60.010(4)(a) and the Ninth Circuit’s order of July 20, 1999. For the Court’s convenience, the contents of the Stipulation are set forth verbatim below.

Plaintiffs Ricardo Guzman and Martin Martinez worked at Green Acres Orchard, an apple grower in Mattawa, Washington, in the summer of 1993. The same summer, plaintiff Miguel Farias worked at Evans Fruit Company, another apple grower in Mattawa. On occasion, plaintiffs’ duties included mixing, loading or applying certain pesticides used in their employers’ apple orchards.

Until 1993, apple growers in Eastern Washington used Phosphamidon, a “restricted use” pesticide, to control aphid infestations in apple orchards.[1] The manufacturer of Phosphamidon elected not to renew its federal registration with the EPA for the 1993 growing season.

In the spring of 1993, defendant Amvac Chemical Corporation was told by one of its distributors, defendant Wilbur-Ellis Company, that apple growers in Washington wanted to identify a pesticide to replace Phosphamidon as a means of controlling aphids in their orchards. Amvac was the manufacturer of Phosdrin, a pesticide that had been used to control aphid infestations in other crops. Phosdrin, like Phosphamidon, was classified by the EPA as a “restricted use” pesticide and its label bore a federally approved warning limiting the product’s permissible uses and providing detailed use instructions. Pursuant to the label, it was permissible to apply Phosdrin in apple orchards.

Due to Phosdrin’s toxicity, and its anticipated use by Washington apple growers who had not previously worked with the product, Amvac worked with the Washington State Department of Agriculture (“WSDA”) to develop additional restrictions on Phosdrin’s sale and use in Washington orchards. These restrictions, which WSDA adopted as “Emergency Rules,”[2] were codified at Wash. Admin. Code §§16-219-020 – 16-219-030. The rules included a series of restrictions on application techniques and a requirement that registrants of Phosdrin for use on apples or pears in Washington make appropriate training available. The rules became effective on June 14, 1993.

Miguel Farias reported experiencing symptoms after working with Phosdrin on July 13, 1993. He was subsequently diagnosed with a mild toxic reaction to organophosphates at Quincy Valley Hospital on July 14, 1993. On July 19, 1993, Martin Martinez reported symptoms after working with Phosdrin and was admitted to Sunnyside Hospital, where he was treated for organophosphate exposure. Ricardo Guzman reported experiencing symptoms after working with Phosdrin on July 21, 1993. He was admitted to Sunnyside Hospital, on July 22, 1993, and treated for organophosphate exposure.

On August 30, 1993, the WSDA temporarily suspended the further use of Phosdrin on tree fruit in Washington orchards pending public hearings. On June 30, 1994, Amvac requested the cancellation of the registration for Phosdrin. EPA has cancelled the Phosdrin registration and Phosdrin can no longer be used in the United States.[3]



As this Court recently observed in Soproni v. Polygon Apartment Partners, 137 Wash.2d 319, 971 P.2d 500 (1999), a plaintiff may establish a manufacturer’s liability for harm caused by a product in “two distinct ways.” 137 Wash.2d at 326, 971 P.2d 504. Under the “risk-utility test,” a manufacturer is liable for harm caused by a product if, “at the time of manufacture, the likelihood that the product would cause the plaintiff’s harms or similar harms, and the seriousness of those harms, outweighed the manufacturer’s burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product’s usefulness.” 137 Wash.2d at 326-27, 971 P.2d at 505, citing Falk v. Keene Corp., 113 Wash.2d 645, 653, 982 P.2d 974, ___ (1989) and Wash. Rev. Code § 7.72.030(1)(a). Under the “consumer expectations” test, the plaintiff must show that the product was “unsafe to an extent beyond that which would be contemplated by the ordinary consumer.” 137 Wash.2d at 327, 971 P.2d at 505, quoting Falk, 113 Wash.2d at 654, 982 P.2d at ___ and citing Wash. Rev. Code § 7.72.030(3).[4]

The first question certified by the Ninth Circuit Court of Appeals involves proper application of the “risk-utility” test. In this case, the plaintiffs allege that they were injured by Phosdrin, a highly toxic pesticide used on apple crops for a three month period in the summer of 1993 until banned by the Washington State Department of Agriculture. In the district court and the Ninth Circuit, the plaintiffs contended that the risks of Phosdrin outweighed its utility because other, less toxic pesticides were available to control aphid infestation of apple crops. Defendant-Appellant Amvac argued inter alia that showing the existence of adequate substitutes for Phosdrin was not enough; plaintiffs were required to demonstrate that Amvac’s Phosdrin “could have been made in a safer manner” (Amvac Br. 36) — in other words, that an alternative, safer design for Phosdrin itself was practical and feasible. The Ninth Circuit found that Washington law is “uncertain” on the issue of whether a plaintiff can establish a design defect by pointing to substitute products, and thus certified the question to the Court.

A.The Text of the Statute Allows a Plaintiff To Show That the Risk of a Product Outweighs its Utility by Proving the Existence of an Alternative Product (As Distinguished from an Alternative Design of the Defendant’s Product).

The language of the Washington Products Liability Act itself indicates that a plaintiff may satisfy the “risk-utility” test by showing that a different product — as opposed to an alternative formulation of the same product — would have prevented the harm while performing the same function as the challenged product. The Act provides that a challenged product

is not reasonably safe as designed if, at the time of manufacture, the likelihood of 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.

Wash. Rev. Code § 7.72.030(1)(a). The test is whether a manufacturer could have “design[ed] a product that would have prevented” the harm, not whether the manufacturer could have altered the design of the product actually sold by the manufacturer to prevent the harm. Although the statute also directs the factfinder to consider the adverse effect that a practical and feasible “alternative design” would have on the usefulness of the product, the preceding phrase indicates that the “alternative design” could be featured in a different product than the one that caused the injury. By 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 that the challenged product is “not reasonably safe.”

B.Decisions of This Court Support a Holding That a Plaintiff May Satisfy the “Risk-Utility” Test by Showing That an Adequate Substitute Product Would Have Prevented the Harm.

Although this Court has not specifically described the type of proof required to demonstrate the existence of an adequate alternative under Wash.Rev.Stat. § 7.72.030(1)(a), it has held that a plaintiff can demonstrate that a product was defectively designed by comparing that product with similar products made by other manufacturers. In Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 588 P.2d 1346 (1979),[5] an airplane stewardess sought damages for injuries that she sustained when she fell through an open escape hatch while performing her preflight duties on a DC-10 manufactured by the defendant. 91 Wash.2d at 346, 588 P.2d at 1347. The hatch cover was not hinged to the hatch, unlike a similar hatch made by Boeing. 91 Wash.2d at 348, 588 P.2d at 1348. The Court held that the plaintiff raised a genuine factual dispute on the issue of whether the hatch was defective “by the comparison of the DC-10 hatch cover and the Boeing 747 hatch cover.” 91 Wash.2d at 352, 588 P.2d at 1350. The Court concluded that the comparison of the two hatches “raises the inference that a reasonable alternative which poses less risk is feasible.” Id.

The flexible, pragmatic approach that this Court has taken in interpreting the Washington Product Liability Act provides additional support for the conclusion that a plaintiff may satisfy the risk-utility test by pointing to the existence of safer feasible alternatives to the challenged product. For example, the Act appears to impose liability only for injuries caused by the negligence of the manufacturer in supplying products that are not reasonably safe. Wash.Rev.Stat. § 7.72.030(1). This Court has nevertheless held that “a design defect claim is still a strict liability claim,” with the focus on “the reasonable safety of the product.” Falk v. Keene Corp., 113 Wash.2d 645, 653, 782 P.2d 974, 979 (1989); see also Couch v. Mine Safety Appliance Co., 107 Wash.2d 232, 239 n.5, 728 P.2d 585, 589 n.5 (1986) (recognizing that the Act imposes strict liability on manufacturers of defective products “notwithstanding its reference to negligence”). And although the Act defines design defect in terms of whether the risk of harm “outweighed the burden on the manufacturer to design” an alternative, § 7.72.030(1)(a), the Court has held that the Act “does not require that the plaintiff in a design defect case against a manufacturer prove the availability of an alternative, reasonably safe design.” Couch, 107 Wash.2d at 246, 728 P.2d at 593. Rather, the existence of alternatives “is merely a factor for the jury to consider,” id., and liability may still be predicated on “general claims of inadequate design” which allow the factfinder to consider “the intrinsic nature of the product” in determining whether a design is defective. 107 Wash.2d at 241, 238, 728 P.2d at 590, 588. The same policy that led to the conclusion in Couch that proof of safer alternatives is not an indispensable element of a strict liability case indicates that the range of alternatives that a factfinder could consider in applying the risk-utility test should be defined broadly, not narrowly.

The Court’s flexible approach in interpreting the Act is illustrated in a different context in Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 818 P.2d 1337 (1992). In Ayers, the plaintiffs alleged that their minor child sustained catastrophic injuries by aspirating baby oil manufactured and sold by the defendant, and claimed that the product was “not reasonably safe” because its packaging inadequately warned of the dangers of aspiration. 117 Wash.2d at 750-51, 818 P.2d at 1339. The defendant noted that the Washington Product Liability Act requires the trier of fact in a warning defect case to consider “whether the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate” (Wash.Rev.Stat. § 7.72.030(1)(b)), and argued that the plaintiffs failed to support their claim because they did not establish the exact wording of an alternative warning. 117 Wash.2d at 755-56, 818 P.2d at 1341-42. This Court rejected the defendant’s narrow construction of the statute, holding that the requirement of proof of alternative warnings is satisfied if the claimant “specifies the substance of the warning.” 117 Wash.2d at 756, 818 P.2d at 1342. To require claimants in failure to warn cases to establish the exact nature of an alternative warning “would impose too onerous a burden.” Id.

Similarly, it would impose “too onerous a burden” on plaintiffs in design defect claims 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. Moreover, such a requirement would not advance the risk-utility analysis. Proof of the existence of a safer alternative to the challenged product is not an end in itself; rather, it is a way of establishing that the risks of a product can be avoided without significant social detriment, that the risks of the product outweigh its utility, and that the challenged product is therefore “not reasonably safe.” To define the relevant alternatives to the product in question too narrowly would deprive the court of information that is relevant and probative on these ultimate questions. Cf. Soproni v. Polygon Apartment Partners, 137 Wash.2d 319, 330, 971 P.2d 500, 506 (1999) (“We are also concerned that the Court of Appeals did not engage in any overt balancing of the risk of Alpine’s product against its utility.”).

For example, in deciding whether the risk of Phosdrin outweighed its utility at the time it was marketed and therefore was “not reasonably safe,” any decisionmaker would want to know whether other pesticides could perform the same function as Phosdrin (i.e., kill aphids on apple crops) with less risk. Amvac’s anticipated answer to the Ninth Circuit’s certified question, however, would prevent the court from considering such evidence. Instead, the court could consider only whether the chemical composition of Phosdrin itself could be modified to enhance the safety of the product without significantly impairing its usefulness. The answer to such a narrow inquiry would not meaningfully inform the Court’s consideration of whether the benefits of Phosdrin outweigh its risks. In contrast, an interpretation of Washington law which would allow the court to consider evidence of alternative products (as distinguished from alternative formulas or designs) would enable the court more accurately to determine whether the risks of a challenged product outweigh the utility of the product, and thus would better serve the policy of the Washington Product Liability Act as interpreted by this Court.

C.Commentators and Other Courts Have Recognized That a Plaintiff May Prove That a Product’s Risk Outweighs its Utility by Showing the Existence of Adequate Alternative Products and Need Not Present Alternative Designs of the Defendant’s Particular Product in Order to Satisfy the “Risk-Utility” Test.

Product liability scholars have long recognized that the availability of a safe substitute for the defendant’s product can help establish that the risks of the product outweigh its utility. In his influential article published 26 years ago, Dean Wade specifically identified the “availability of a substitute product that would meet the same need and not be as unsafe” as a factor to consider in the risk-utility analysis. John W. Wade, On the Nature of Strict Liability for Products, 44 Miss. L.J. 825, 837-38 (1973). Similarly, Dean Keeton identified “the availability of substitute products” as a factor in measuring the “benefit” of a challenged product. Page Keeton, Product Liability and the Meaning of Product Defect, 5 St. Mary’s L.J. 30, 37-38 (1973).

More specifically, courts in other jurisdictions that employ the risk-utility test in design defect cases have directly rejected the proposition that a plaintiff must propose a reformulation of the chemical composition of the defendant’s product in order to satisfy the requirement of showing the existence of an adequate alternative design. In Brown v. Superior Court, 751 P.2d 470 (Cal. 1988), the plaintiffs sought damages for injuries caused by their exposure in utero to the prescription drug DES, and alleged that the DES was defectively designed because the risks of DES outweighed its utility. Id. at 478. The defendants argued that plaintiffs could not satisfy the risk-utility test without proof of a “safer alternative design” for DES, and contended that “there is no possibility for an alternative design for a drug like DES, which is a scientific constant compounded in accordance with a required formula.” Id. The California Supreme Court agreed that California’s risk-utility test “contemplates a safer alternative design is possible,” but rejected the defendants’ “attempt to confine the issue to whether there is an alternative design for DES” as “unreasonably narrow.” The court observed that “plaintiff might be able to prove that other, less harmful drugs were available to prevent miscarriage,” and noted that “the benefit of such drugs could be weighed against the advantages of DES in making the risk/benefit analysis.” Id.[6]

The Rhode Island Supreme Court has similarly acknowledged that a plaintiff may satisfy the requirement of proving the existence of an alternative design for the challenged product by demonstrating that other products could perform the same function more safely. In Castrignano v. E.R. Squibb & Sons, Inc., 546 A.2d 775 (R.I. 1988), as in Brown, the defendant in a DES case argued that “a prescription drug, a fixed chemical composition, cannot be defectively designed because there are no alternatives to its configuration.” Id. at 781. The Rhode Island Supreme Court rejected this contention as “specious,” noting that “[t]he defendant’s interpretation of the design-defect theory is too restricted, especially since there may be alternative drugs available that could replace the drug with the dangerous side effects.” Id.

Other courts have observed generally that a plaintiff may show a design defect by showing that an alternative product — as distinguished from an alternative design of the defendant’s product — was safe and feasible. In Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La. 1986), the Louisiana Supreme Court held that a plaintiff may prove a design defect by showing that: (1) “[a] reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product;”[7] (2) “alternative products were available to serve the same needs or desires with less risk of harm”; or, (3) “there was a feasible way to design the product with less harmful consequences.” Id. at 115 (emphasis added).

More recently, the Georgia Supreme Court has recognized that “the availability of an effective substitute for the product which meets the same need but is safer” may be considered in determining whether the risk of a challenged product outweighs its utility. Banks v. ICI Americas, Inc., 450 S.E.2d 671, 675 n.6 (Ga. 1994). In Banks, the plaintiffs’ nine year old child died after ingesting rat poison manufactured and sold by the defendant. The plaintiffs alleged both that the rat poison was inadequately labelled and that the product was defectively designed. The Georgia Supreme Court held that the plaintiffs’ failure to warn claim was preempted by FIFRA, id. at 676, but that plaintiffs could recover on their design defect theory, adopting the “risk-utility analysis” for determining the existence of a design defect. Id. at 674. The court observed that “availability of alternative designs” is “integral to the assessment of the utility of a design,” because “the existence of a safer and equally efficacious design diminishes the justification for using a challenged design.” Id. The court added that “[a]lternative design factors include: the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial cost of the improved design; and the adverse effects from the alternative.” Id. at 675 n.6 (emphasis added).

This consensus that substitute products may be considered as alternative designs to the challenged product is reflected in the Restatement (Third) of Torts. One of the most controversial features of the new Restatement is its requirement — contrary to the law of many states, including this state — that a plaintiff alleging a design defect must prove that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . . , and the omission of the alternative design renders the product not reasonably safe.”[8] Restatement (Third) of Torts: Products Liability §2(b) (1998); see also Richard L. Cupp., Jr., Defining the Boundaries of “Alternative Design” Under the Restatement (Third) of Torts: The Nature and Role of Substitute Products in Design Defect Analysis, 63 Tenn. L. Rev. 329, 332-32 (1996) (describing the controversy over the “reasonable alternative design” requirement). Yet the Reporters have made unmistakably clear that the requirement of proving a “reasonable alternative design” may be satisfied by reference to other products that serve the same functions as the challenged product. In explaining that §2(b) does not require the plaintiff to produce expert testimony proving the existence of a reasonable alternative design, the Reporters expressly note that “other products already available on the market 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.” Restatement (Third) of Torts: Products Liability §2(b), cmt. f (1998), at 24. One commentator has thus concluded that “even under the Restatement (Third), manufacturers will not be able to avoid liability merely by proclaiming a narrow definition of their products . . . .” Cupp, Defining the Boundaries of “Alternative Design,” 63 Tenn. L. Rev. at 332. Instead, the Restatement “portrays alternative design as a concept broad enough to include substitute products within its scope.” Id. at 368.

The text of the Washington Product Liability Act, language in opinions of this Court explaining the risk-utility test for determining product defect, and the weight of commentary and authority from other jurisdictions all support the conclusion 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. The Court should therefore answer the Ninth Circuit’s first certified question in the affirmative.


Comment k to section 402A of the Restatement (Second) of Torts[9] recognizes that some products are so beneficial to society that they should be encouraged “regardless of the risks involved to the user.” Rogers v. Miles Labs., Inc., 116 Wash.2d 195, 204, 802 P.2d 1346, 1351 (Wash. 1991). “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.” Id. To encourage the manufacture and use of these “unavoidably unsafe” but valuable products, comment k exonerates the manufacturer of strict liability for injuries caused by such products so long as the product is “properly prepared and accompanied by proper directions and warning.” Comment k. The drafters recognized that “unavoidably unsafe” products “are especially common in the field of drugs,” and cited only medical products as examples of products whose value to society justified the exemption from strict liability. Id. The Ninth Circuit nevertheless found Washington law “uncertain” on whether a pesticide can be designated an “unavoidably unsafe product” — a designation which would immunize the manufacturer from strict liability for injuries caused by design defects in the product — and certified the question to this Court.

A.The Rationale of This Court in Applying Comment K in Cases Involving Medical Products Indicates That a Pesticide Cannot Be an “Unavoidably Unsafe Product.”

This Court has applied comment k only in cases involving medical products prescribed by a physician. The Court adopted comment k in Terhune v. A.H. Robins Co., 90 Wash.2d 9, 577 P.2d 975 (Wash. 1978), in which the court held that the manufacturer of the Dalkon Shield would not be liable for injuries caused by the product if it supplied adequate warnings and instructions to the physicians who prescribed it. 90 Wash.2d at 12-13, 577 P.2d at 977. Rejecting an argument that the rationale of comment k applies only to drugs that have received approval from the federal Food and Drug Administration, the Court held that the “principles stated in comment k . . . have their basis in the character of the medical profession and the relationship that exists between the manufacturer, the physician and the patient.” 90 Wash.2d at 16-17, 577 P.2d at 979.

The Court next considered the scope of comment k in Rogers v. Miles Labs., Inc., 116 Wash.2d 195, 802 P.2d 1346 (Wash. 1991). In Rogers, the Court held that comment k protected suppliers of plasma tainted with the HIV virus from strict liability claims asserted by persons who had received the plasma in blood transfusions. The Court cited three reasons for exempting blood products from strict liability: (1) the “societal need to ensure an affordable, adequate blood supply;” (2) the inability of strict liability to provide an incentive to the blood product industry to avoid unknowable risks; and (3) the belief that, because of the small population of blood product users who would have to bear the cost of liability, “it is not in society’s best interest to have the price of a transfusion reflect its true costs.” 116 Wash.2d at 204, 802 P.2d at 1351, quoting Howell v. Spokane & Inland Empire Blood Bank, 114 Wash.2d 42, 52, 785 P.2d 815, ___ (1990).

Most recently, in Young v. Key Pharmaceuticals, Inc., 130 Wash.2d 160, 922 P.2d 59 (Wash. 1996), the Court applied comment k to protect the manufacturer of Theophylline, a prescription drug used to treat asthma, from a strict liability claim. Citing Terhune, the Court noted that comment k “is not limited to last ditch life-saving measures,” 130 Wash.2d at 170 n.4, 922 P.2d at 64 n.4, and held that under Washington law, comment k applies to all prescription drugs; “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.” 130 Wash.2d at 170, 922 P.2d at 64.[10]

No Washington court, and no court applying Washington law, has ever applied comment k in a case not involving medical products. In both Terhune and Young, the Washington Supreme Court recognized that the immunity in comment k applies to prescription medical products precisely “because of the ‘character of the medical profession’ and the active, intermediate involvement of a physician.” Young, 130 Wash.2d at 170, 922 P.2d at 64, quoting Terhune, 90 Wash.2d at 13-14, 577 P.2d at 979. The prescribing physician’s “active, intermediate involvement” insures that the individual’s use of the product is an acceptable risk under the circumstances: “it 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 Wash.2d at 16, 577 P.2d at 979.

In contrast, it is not safe to surmise that a commercial grower — the analogous intermediary between manufacturer and ultimate user — will independently evaluate the risks of use of a particular pesticide and will “take into account the amount of testing, or lack thereof, which has been done with respect to the product” in deciding whether or not to use it. The motivation of a physician is entirely different from that of a commercial grower. A physician’s interest is to promote the health of his or her patient. A commercial grower’s interest is to grow crops; the health of the worker is not a primary purpose of the enterprise. Because the ultimate user of a pesticide does not enjoy the additional protection supplied by a medical intermediary, the rationale for granting comment k immunity does not apply.

Moreover, none of the policy reasons recited by the court in Rogers for exempting suppliers of blood products from liability supports a similar exemption for the manufacturers of pesticides. Society’s need for pesticides to promote crop production does not resemble the need of hemophiliacs for blood products to allow them to continue to live.[11] Although strict liablity does not provide an incentive for any manufacturer to guard against unknowable risks, the risks associated with many pesticides — such as the Phosdrin in this case — are not only knowable, but have been known to the manufacturers for decades. And the “economic reasoning” used by the court in Rogers to justify exempting suppliers of blood products from liability (116 Wash.2d at 206, 802 P.2d at 1352) does not justify extending to manufacturers of pesticides a similar exemption. While the cost of liability for injuries caused by any particular medical product (such as the blood products in Rogers) can be spread only among a small population, the cost of liability for using unsafe pesticides will ultimately be borne by consumers of the crops grown through the use of the pesticide.

B.Decisions from Other Jurisdictions, and the Restatement (Third) of Torts, Establish That Pesticides Are Not “Unavoidably Unsafe Products” Exempt from Strict Liability Analysis.

Courts in other jurisdictions have recognized that the rationale for limiting liability of suppliers of “unavoidably unsafe” products should not immunize manufacturers of defectively designed pesticides from liability. See Arkansas Platte & Gulf Partnership v. Dow Chem. Co., 886 F. Supp. 762, 767 (D. Colo. 1995) (“The exception to liability provided by comment k was intended to apply to drugs and medical products, as indicated by the illustrations accompanying comment k. . . . Dow has not demonstrated that Dowicide 7 is an unavoidably unsafe product.”); Kennan v. Dow Chem. Co., 717 F. Supp. 799, ___ (M.D. Fla. 1989) (“The Court finds that comment k deals expressly with new drugs whose production is justified for their life saving characteristics. The defendants have not demonstrated that their products, like life-saving drugs, are ‘unavoidably’ dangerous.”).

The inapplicability of comment k to design defect claims involving pesticides is most dramatically illustrated, however, by the omission of any reference to “unavoidably unsafe products” in the Third Restatement. Replacing comment k in the new Restatement is section 6, which provides special rules for imposing liability on sellers of prescription drugs and medical devices, but not for any other type of products. Restatement (Third) of Torts: Products Liability § 6 (1998). The new Restatement reflects the belief of its drafters “that courts should not protect other types of products” under the “unavoidably unsafe” language of comment k. Richard L. Cupp, Rethinking Conscious Design Liability for Prescription Drugs: The Restatement (Third) Standard Versus a Negligence Approach, 63 Geo. Wash. L. Rev. 76, 96 (1994).

The decisions of this Court applying comment k, the decisions of other courts in cases involving pesticides, and the omission of any protection for allegedly “unavoidably unsafe” products (other than medical products) in the new Restatement all indicate that pesticides cannot be classified as “unavoidably unsafe products” and exempted from strict liability analysis. The Court should answer the second question certified by the Ninth Circuit in the negative.


For the foregoing reasons, Plaintiffs-Appellants respectfully pray that the Court answer the questions certified to it by the United States Court of Appeals for the Ninth Circuit as follows:

QUESTION 1: Under the Washington Product Liability Act’s “risk-utility” test, may a plaintiff rely on an alternative product to show that the challenged product’s risks outweigh the adverse effects of using an “alternative design?”


QUESTION 2: Under Washington law, can a pesticide be an “unavoidably unsafe product” as described in comment k to Restatement (Second) of Torts § 402A?


DATED this _____ day of _____________, 1999.

Respectfully submitted,

  1. “Restricted Use” pesticides must be registered with the Environmental Protection Agency (“EPA”) and the State of Washington. If a pesticide is classified by the EPA as a restricted use pesticide, it may only be distributed by a licensed pesticide dealer to a certified pesticide applicator or his or her duly authorized representative. WAC 16-228-164(1). Further, a restricted use pesticide may only be applied by a certified pesticide applicator. See generally WAC 16-228-164, -90.
  2. The term “Emergency Rules” refers to the fast-track method used to promulgate rules under the applicable Washington Administrative regulations.
  3. The relevance and admissibility of the facts stated in this paragraph is not stipulated.
  4. A copy of the complete Washington Product Liability Act is included in the appendix to this brief.
  5. Although Lamon predates the effective date of the Washington Product Liability Act, this Court has made clear that the Act did not change “the nature of a product liability claim.” Falk v. Keene Corp., 113 Wash.2d 645, 653, 782 P.2d 974, 979 (1989).
  6. The court then held that because prescription drugs are “unavoidably unsafe products” within the meaning of comment k to Restatement (Second) of Torts § 402A (1965), the DES manufacturers were not strictly liable for design defects, 751 P.2d at 474-483, a holding that this Court has cited with approval. Young v. Key Pharmaceuticals, Inc., 130 Wash.2d 160, 168-71, 922 P.2d 59, 63-65 (1996) Rogers v. Miles Laboratories, Inc., 116 W2d 195, 207, 802 P.2d 1346, 1353 (1991). The Brown court’s classification of DES as an unavoidably unsafe product does not, of course, detract from its observation that the plaintiff could establish the existence of alternatives to DES by showing that other drugs could produce the same desired effects.
  7. This theory of liability, under which a product is considered “unreasonably dangerous per se,” is a hybrid of the “consumer expectation” and “risk-utility” tests, with the added feature that liability attaches even if the risk of harm is unforeseeable. Halphen, 484 So.2d at 113-14. In 1988 the Louisiana Legislature enacted the Louisiana Products Liability Act, La. Rev. Code Ann. § 2800.56 (West 1991), which abolished this theory of liability. In re Asbestos Plaintiffs v. Bordelon, Inc., 726 So.2d 926, ___ (La. Ct. App. 1998).
  8. As noted above, the Washington Product Liability Act does not require a plaintiff to demonstrate the existence of an alternative design to establish a design defect. Couch v. Mine Safety Appliance Co., 107 Wash.2d 232, 246, 728 P.2d 585, 593 (1986).
  9. Comment k is set forth in full in the appendix to this brief.
  10. The Ninth Circuit’s second certified question asks generally whether “a pesticide” can be designated an “unavoidably unsafe product.” The question permits the Court to consider both whether pesticides as a class of products are “unavoidably unsafe” and whether a particular pesticide can qualify as an unavoidably unsafe product. The Young court held that under Washington law, all prescription drugs are unavoidably unsafe; “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.” 130 Wash.2d at 170, 922 P.2d at 64 (emphasis added). This language does not literally preclude case-by-case evaluation of pesticides. The issue is academic, however. As we demonstrate in the text, pesticides should not be designated “unavoidably unsafe” as a class. And application of the risk-utility test that is the subject of the first certified question will settle the issue of whether the pesticide involved in this case is unavoidably unsafe.
  11. This is particularly true of pesticides, like Phosdrin, whose primary purpose is to improve the cosmetic appearance of the crops.