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WPI 110.00 Introduction

6 WAPRAC WPI 110.00Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 110.00 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 110. Product Liability
WPI 110.00 Introduction
Background. The Washington Product Liability Act of 1981 (WPLA), RCW Chapter 7.72, was designed to simplify the adjudication of product liability claims, since the statutory cause of action subsumes all other causes of action “based on any other substantive legal theory except fraud, intentionally caused harm or a claim or action under the consumer protection act.” RCW 7.72.010(4). However, because there are claims that arose prior to the adoption of the WPLA, and because the WPLA has been interpreted to retain many of the features of the pre-WPLA common law approach to product liability, close attention should be paid to the relationship between the WPLA and the Tort Reform Act of 1981 (Chapter 4.22 RCW) concerning the allocation of fault.
Scope of the WPLA. Despite the intent to unify the treatment of all product liability claims, some types of claims are not covered by the WPLA. For example, human tissue, organs, blood, and its components are excluded. RCW 7.72.010(3); Howell v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 51–52, 785 P.2d 815 (1990). For a detailed analysis of the scope of the WPLA, see DeWolf & Allen, 16 Washington Practice, Tort Law & Practice § 17.4 (5th ed.).
Allocating fault. Product liability claims are often combined with claims against other defendants and fault on the part of the plaintiff may also be alleged. As a result, the jury instructions will often need to explain precisely how percentages of fault should be assigned to different “entities,” as defined by the statute, which may include not only parties to the lawsuit but other entities as well. Jury instructions should be carefully tailored to insure consistency with the verdict forms. See generally Coulter v. Asten Grp., Inc., 135 Wn.App. 613, 146 P.3d 444 (2006); Lundberg v. All-Pure Chem. Co., 55 Wn.App. 181, 777 P.2d 15 (1989).
Suggested considerations. With continuous improvement in mind, the WPI Committee suggests the following considerations for product liability causes of action:

  • (1) Precise wording. The court's instructions to the jury must be worded precisely, so that the jury will understand how to apportion “fault” under RCW 4.22.015 and 4.22.070, among parties (other than intentional tortfeasors). See WPI 110.31.01 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—No Empty Chairs), Question 6; WPI 110.31.02 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—Empty Chairs), Questions 8 and 9.

  • (2) Pre-WPLA claims. Some product liability claims (particularly those involving asbestos exposure) are governed by pre-WPLA law. Consequently, instructions in this chapter will need to be modified if the action arose before July 26, 1981. For pattern instructions applying to pre-WPLA product liability actions, see the second edition of this volume. RCW 7.72.020(1) provides that pre-existing law is modified only to the extent set forth in the act. Accordingly, this chapter's commentary includes references to pre-WPLA case law when relevant. See Fagg v. Bartells Asbestos Settlement Trust, 184 Wn.App. 804, 339 P.3d 207 (2014), for a comprehensive discussion concerning the applicability of the WPLA in a case where the plaintiff was exposed to asbestos over an extended period of time (pre and post WPLA), in a variety of settings and through several different mechanisms.

  • (3) Preemption. State product liability law is sometimes preempted by federal laws regulating particular products or activities. There is a presumption against federal preemption of state law. Wyeth v. Levine, 555 U.S. 555, 565, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009); Hill v. Garda CL Nw., Inc., 191 Wn.2d 553, 424 P.3d 207 (2018) (claims for violation of Minimum Wage Act not preempted by Labor Management Relations Act). To determine whether state law is preempted by federal law, the court should consider: (1) the federal law and record of legislative and agency intent; (2) whether the federal record shows a balancing of interests, analysis of factors, and explanation of exactly how state tort claims interfere with implementation of federal law. Compare Wyeth, 555 U.S. 555, with Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). Washington courts have found that certain federal statutes preempt state product liability claims, see, e.g., Hue v. Farmboy Spray Co., 127 Wn.2d 67, 896 P.2d 682 (1995) (federal law regulating pesticides); Berger v. Personal Prods., Inc., 115 Wn.2d 267, 797 P.2d 1148 (1990) (FDA regulation on tampon labels regarding toxic shock syndrome); Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 884 P.2d 920 (1994) (federal common law regarding goods supplied to government by a government contractor).

  • (4) Punitive damages. Punitive damages are not permitted under WPLA. Washington courts will apply the punitive damages law of other jurisdictions in product liability cases, if warranted under choice of law principles. In such a situation, the jury instructions on punitive damages should conform to the laws of the other state. Singh v. Edwards Lifesciences Corp., 151 Wn.App. 137, 143–44, 210 P.3d 337 (2009). See also Bryant v. Wyeth, 879 F.Supp.2d 1214 (W.D. Wash. 2012), as to application of choice of law principles.

  • (5) Damages for Emotional Distress. These damages are recoverable by the direct purchaser of a contaminated food product, in the absence of physical injury, if the emotional distress is a reasonable response and manifests by objective symptomology. Bylsma v. Burger King, 176 Wn.2d 555, 293 P.3d 1168 (2013).
See generally DeWolf & Allen, 16 Washington Practice, Tort Law & Practice, Chapter 17 (5th ed.).
[Current as of January 2021.]
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