## Facts

- Christine A. Murphy alleged her mother ingested diethylstilbestrol (DES) during pregnancy in 1951–1952 to prevent miscarriage.
- Murphy later developed clear cell adenocarcinoma and alleged the drug was defectively designed.
- Murphy sued (1) Exclusive Prescription Pharmacy Corporation, which dispensed the DES pursuant to a physician’s prescription, and (2) E.R. Squibb & Sons, Inc., a DES manufacturer.
- Murphy pleaded two strict-liability theories against Squibb: (a) Squibb made the specific DES her mother took; and (b) alternatively, Murphy could not identify the manufacturer and sought liability under a market-share theory.
- Murphy offered to prove Squibb sold about 10% of DES in the national market for the relevant use.

## Issues

1. Whether a retail pharmacy that dispenses a prescription drug pursuant to a physician’s order may be held strictly liable in tort for defects in the drug.
2. Whether a DES manufacturer with roughly 10% of the national market may be treated as having a “substantial” market share sufficient for market-share liability when the plaintiff cannot identify the specific manufacturer.

## Decision

- The court affirmed judgment on the pleadings for the pharmacy, holding a pharmacy dispensing prescription drugs is not strictly liable for alleged defects in those drugs.
- The court reversed the ruling that excluded Squibb from market-share liability, holding that a 10% national market share may qualify as “substantial” for market-share purposes.
- The case was remanded for further proceedings against Squibb under the market-share theory.

## Legal Principles

- A pharmacy dispensing prescription medication pursuant to a physician’s prescription is treated as providing professional services, not as an ordinary retail seller for strict products liability.
- Denying strict products liability for pharmacies does not preclude potential liability under negligence theories.
- In DES cases where the plaintiff cannot identify the manufacturer, market-share liability may apportion responsibility among manufacturers according to their market participation.
- A manufacturer with approximately 10% of the relevant national market may, as a matter of law, be included as a market-share defendant; market-share doctrine does not require a numerical majority or fixed minimum above 10%.

## Conclusion

The court shielded pharmacies from strict products liability for dispensing prescription drugs, while preserving plaintiffs’ ability to proceed against DES manufacturers under market-share liability and holding that a 10% national share can be “substantial” enough to keep a manufacturer in the market-share defendant pool.


Murphy v. E.R. Squibb & Sons, Inc., 710 P.2d 247 (Cal. 1985)