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Washington State Physicians Insurance Exchange & Association v. Fisons Corp.9/16/1993
g such a remedy for injury to a physician that results from a prescription drug manufacturer's failure to supply adequate information will encourage drug manufacturers to supply that information and thus further the regulatory objective.
Oksenholt, at 220. When one evaluates the validity of the majority's supposition that recovery would "chill" drug manufacturers in marketing products and even in developing new ones, it must be remembered that this case did not involve the scientific complexities of some new drug. All this defendant had to do to escape liability was give the plaintiff and other doctors a fair warning of the literally lethal potential consequences of its widely used drug. Defendant knew those facts; its marketing strategy, the bottom dollar line, led to liability. Hiding the truth is what "chilled" its drug and left the plaintiff's child patient permanently brain damaged.
I turn to other reasons advanced by the majority. It correctly notes that there is no directly applicable Washington product liability case on the issue presented, whether the issue be who is a proper claimant or are these type of damages "harm" within the statute. However, the majority errs in asserting that in our prior product liability cases under the PLA, "the 'harm' involved has been for injury caused directly by the product to the person or the property of the claimant." (Footnote omitted.) Majority, at 320. It cites Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash. 2d 747, 763, 818 P.2d 1337 (1991); Washburn v. Beatt Equip. Co., 120 Wash. 2d 246, 840 P.2d 860 (1992). The majority's statement is not accurate and the cited cases lend
it no support, but rather support the dissent. In Ayers, there was a $500,000 recovery by the parents of the child who had been injured directly by the product. In Washburn, there was a $2 million recovery by the wife of the person injured by the product. Neither the parents nor the wife suffered injuries caused directly by the product. They were persons whose emotional injuries alone were linked to the person who was injured by the product, just as plaintiff doctor claims injuries linked to the person who was injured by the product.
Next, the majority relies by analogy on Gain v. Carroll Mill Co., supra. It too provides no support for the majority. The sole holding in Gain is that the mental distress of family members who were not present when their son and brother were killed is not foreseeable as a matter of law. Gain, at 261. The holding in Gain is entirely irrelevant here; foreseeability is not an issue. We recently so held: "foreseeability is not an element of a failure to warn claim arising under subsection (b)" of RCW 7.72.030(1). Ayers, at 765.
I can discern no other rationale in the majority other than that discussed and rejected above. Because the majority repeatedly emphasizes what it perceives to be legislative intent in enacting the PLA, we should examine evidence of legislative intent.
First, we should consider the only theory raised by the defendant, the one never considered by the majority, i.e., that the plaintiff doctor lacked standing because he is not a "claimant" as defined by the PLA. To read the plain language of the statute answers the question. RCW 7.72.010(5) could hardly be stated more broadly: "Claimant. 'Claimant' means a person or entity asserting a product liability claim . . . 'Claimant' includes any person or entity that suffers harm."
Up to this point in the statutory definition of claimant, there is nothing which suggests t
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