S-0853.1          _______________________________________________


                                 SENATE BILL 5466



State of Washington              52nd Legislature             1991 Regular Session


By Senators Nelson, Moore, Amondson, Conner, Johnson, Newhouse, West, Rasmussen, Wojahn, Sutherland and L. Smith.


Read first time February 1, 1991.  Referred to Committee on Law & Justice.Limiting the strict liability of pharmacists.

     AN ACT Relating to licensed pharmacists, limiting their liability by declaring them to be nonproduct sellers who are not subject to Title 62A RCW; amending RCW 7.72.010; adding a new section to chapter 18.64 RCW; creating a new section; and declaring an emergency.




     NEW SECTION.  Sec. 1.      The legislature recognizes that drugs and devices are approved for distribution after study and evaluation.  The legislature finds it is in the public interest that a wide range of drugs and devices be available to the public, even though some are potentially harmful.  The legislature further finds that the services of a pharmacist are an extension of the services of prescribing practitioners in that a pharmacist limits public access to certain drugs and devices to such practitioners' prescriptions.


     NEW SECTION.  Sec. 2.  A new section is added to chapter 18.64 RCW to read as follows:

     The dispensing by a licensed pharmacist of a prescription product manufactured by a commercial manufacturer pursuant to a prescription issued by a licensed prescribing practitioner constitutes the rendition of a service, and is not covered by any implied warranty under the uniform commercial code, Title 62A RCW, or otherwise.  No civil liability may be incurred as a result of any such acts, except in a case of willful or negligent conduct.


     Sec. 3.  RCW 7.72.010 and 1981 c 27 s 2 are each amended to read as follows:

     For the purposes of this chapter, unless the context clearly indicates to the contrary:

     (1) Product seller.  "Product seller" means any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption.  The term includes a manufacturer, wholesaler, distributor, or retailer of the relevant product.  The term also includes a party who is in the business of leasing or bailing such products.  The term "product seller" does not include:

     (a) A seller of real property, unless that person is engaged in the mass production and sale of standardized dwellings or is otherwise a product seller;

     (b) A provider of professional services who utilizes or sells products within the legally authorized scope of the professional practice of the provider;

     (c) A commercial seller of used products who resells a product after use by a consumer or other product user:  PROVIDED, That when it is resold, the used product is in essentially the same condition as when it was acquired for resale; ((and))

     (d) A finance lessor who is not otherwise a product seller.  A "finance lessor" is one who acts in a financial capacity, who is not a manufacturer, wholesaler, distributor, or retailer, and who leases a product without having a reasonable opportunity to inspect and discover defects in the product, under a lease arrangement in which the selection, possession, maintenance, and operation of the product are controlled by a person other than the lessor; and

     (e)  A licensed pharmacist who dispenses a prescription product manufactured by a commercial manufacturer pursuant to a prescription issued by a licensed prescribing practitioner.

     (2) Manufacturer.  "Manufacturer" includes a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer.  The term also includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer.

     A product seller acting primarily as a wholesaler, distributor, or retailer of a product may be a "manufacturer" but only to the extent that it designs, produces, makes, fabricates, constructs, or remanufactures the product for its sale.  A product seller who performs minor assembly of a product in accordance with the instructions of the manufacturer shall not be deemed a manufacturer.  A product seller that did not participate in the design of a product and that constructed the product in accordance with the design specifications of the claimant or another product seller shall not be deemed a manufacturer for the purposes of RCW 7.72.030(1)(a).

     (3) Product. "Product" means any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce.  Human tissue and organs, including human blood and its components, are excluded from this term.

     The "relevant product" under this chapter is that product or its component part or parts, which gave rise to the product liability claim.

     (4) Product liability claim. "Product liability claim" includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product.  It includes, but is not limited to, any claim or action previously based on:  Strict liability in tort; negligence; breach of express or implied warranty; breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or other claim or action previously based on any other substantive legal theory except fraud, intentionally caused harm or a claim or action under the consumer protection act, chapter 19.86 RCW.

     (5) Claimant. "Claimant" means a person or entity asserting a product liability claim, including a wrongful death action, and, if the claim is asserted through or on behalf of an estate, the term includes claimant's decedent.  "Claimant" includes any person or entity that suffers harm.  A claim may be asserted under this chapter even though the claimant did not buy the product from, or enter into any contractual relationship with, the product seller.

     (6) Harm.  "Harm" includes any damages recognized by the courts of this state:  PROVIDED, That the term "harm" does not include direct or consequential economic loss under Title 62A RCW.


     NEW SECTION.  Sec. 4.      This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.