Ruiz-Guzman v. Amvac Chemical Corp.

• Decision Date: 24 August 2000
• Docket Number: No. 68434-1.,68434-1.
• Citation: 141 Wash.2d 493,7 P.3d 795
• Court: Washington Supreme Court
• Parties: Certification from the United States Court of Appeals for the Ninth Circuit in Ricardo RUIZ-GUZMAN, Martin Martinez, Miguel Farias and Ignacia Farias, Appellants, v. AMVAC CHEMICAL CORPORATION, a California corporation, and Wilbur-Ellis Company, a California corporation, Appellees.

7 P.3d 795

141 Wash.2d 493

Certification from the United States Court of Appeals for the Ninth Circuit in

Ricardo RUIZ-GUZMAN, Martin Martinez, Miguel Farias and Ignacia Farias, Appellants, v. AMVAC CHEMICAL CORPORATION, a California corporation, and Wilbur-Ellis Company, a California corporation, Appellees.

No. 68434-1.

Supreme Court of Washington, En Banc.

Argued February 17, 2000.

Decided August 24, 2000.

Dawson, Meade, Marcia Marie Meade, Spokane, Patti A. Goldman, Michael E. Withey, Stritmatter, Kessler, Seattle, Brent M. Rosenthal, Dallas, Paul Lester Stritmatter, Stritmatter, Kessler, Hoquiam, for Plaintiffs.

Perkins, Coie, V. L. Woolstron, Glenn S. Draper, Christopher W. Tompkins, Betts, Patterson, Mines, Seattle, for Defendants.

Lane, Powell, Spears, Lubersky, Emilia L. Sweeney, Keating, Bucklin & McCormack, Stewart Andrew Estes, Seattle, for Amicus Curiae on Behalf of Washington Defense Trial Lawyers.

Debra Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae on Behalf of Washington State Trial Lawyers Assoc.

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 § 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 § 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) Foundation, 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 Wash.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, 588 P.2d 1346. 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, 588 P.2d 1346. 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, 588 P.2d 1346. 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....