Erickson v. Pharmacia: WPLA Does Not Displace Washington’s Issue-by-Issue Choice-of-Law; Missouri Law Can Control Repose and Punitive Damages, and PCB Exposure Reconstruction Satisfies Frye

Introduction

This en banc decision from the Supreme Court of Washington resolves pivotal conflicts-of-law and evidence questions arising from toxic exposure claims brought by three public school teachers against Pharmacia LLC, the successor-in-interest to the original Monsanto Company that manufactured PCBs. The teachers alleged injuries from PCB exposure at the Sky Valley Education Center (SVEC) in Monroe, Washington, and sued under the Washington Product Liability Act (WPLA) for design defect, construction defect, failure to warn at sale, and postsale failure to warn, while also seeking punitive damages under Missouri law.

The case reached the Supreme Court after the Court of Appeals ordered a new trial based on (a) its view that the WPLA’s statute of repose necessarily governed because the WPLA supplied the substantive law of liability, (b) limitations it placed on punitive damages to theories recognized under Missouri substantive product law, and (c) partial exclusion of the plaintiffs’ industrial hygiene expert’s exposure reconstruction testimony. The high court reversed in large part and reinstated the jury’s verdict, clarifying (and fortifying) Washington’s choice-of-law framework and Frye standards.

Key issues addressed include:

Whether Washington’s choice-of-law methodology permits courts to apply different states’ laws to different issues in the same case (issue-by-issue analysis), even when the underlying claim is brought under a Washington statute such as the WPLA.
Whether Missouri law governs the issues of statute of repose and punitive damages when Missouri bears the most significant relationship to those specific issues.
Whether a special verdict form must ask the jury to tie punitive damages to a particular theory of liability recognized by the punitive-damages state.
Whether industrial hygienist Kevin Coghlan’s PCB exposure reconstruction methods satisfy Frye and ER 702.

Summary of the Opinion

Chief Justice Stephens, writing for the court, partially reversed the Court of Appeals and reinstated the jury’s verdict, holding that:

Washington courts must perform an issue-by-issue choice-of-law analysis under Johnson v. Spider Staging Corp. and the Restatement (Second) of Conflict of Laws, even when the claim is brought under the WPLA. The WPLA contains no legislative directive that overrides Washington’s established conflicts methodology.
Applying that analysis, Missouri has the most significant relationship to the issues of repose and punitive damages. Therefore, Missouri law governs both:
- Repose: Missouri has no product liability statute of repose. Its interest in deterring tortious conduct within its borders outweighs Washington’s interest in extending repose protections to an out-of-state manufacturer for Missouri-centered conduct.
- Punitive damages: Missouri’s purpose of punishment and deterrence focuses on the locus of the wrongful corporate conduct—here, Missouri—so Missouri punitive law applies notwithstanding Washington’s general bar on punitive damages in its own law.
The jury’s punitive-damages finding is sustainable without a theory-specific interrogatory identifying a Missouri-recognized product liability theory. The WPLA governed liability; Missouri law governed the punitive standard. The instructions properly required a finding of “complete indifference to or conscious disregard for the safety of others,” the Missouri standard.
Industrial hygienist Kevin Coghlan’s exposure reconstruction opinions were admissible. His two challenged back-calculation methods—using partition coefficients derived from EPA research (the Guo study) applied to SVEC carpet samples, and using protection factors derived from EPA’s study of New York City schools (the Thomas study)—rest on generally accepted methodologies and were reliably applied under Frye and ER 702. Critiques go to weight, not admissibility.

Justice Gordon McCloud dissented, arguing the WPLA’s statute of repose is “integrated” into any WPLA claim and thus must apply without a separate choice-of-law analysis once WPLA governs liability.

Analysis

Precedents Cited and Their Influence

Johnson v. Spider Staging Corp., 87 Wn.2d 577 (1976): The court reaffirmed Johnson’s abandonment of lex loci delicti in favor of the Restatement (Second)’s flexible, issue-by-issue analysis, applying the law of the state with the most significant relationship to each discrete issue. Johnson’s emphasis on the specific policy behind the conflicting rules (e.g., deterrence vs. damage caps) was central to the court’s analysis here.
Restatement (Second) of Conflict of Laws §§ 6, 145, 146, 171: These provisions frame both the factor analysis (policies of the forum and other interested states, justified expectations, predictability, etc.) and the specific contacts and purposes relevant to tort issues, including damages and punitive damages. The court underscores that § 145’s framework applies to “all torts and to all issues in tort,” not only substantive liability.
Rice v. Dow Chemical Co., 124 Wn.2d 205 (1994): Confirmed that statutes of repose are substantive for conflicts purposes and can differ from statutes of limitation, which are treated via Washington’s borrowing statute. Rice supports treating repose as a separate issue for conflicts analysis; it does not compel the WPLA’s repose to apply whenever the WPLA governs liability.
Zenaida-Garcia v. Recovery Systems Technology, Inc., 128 Wn. App. 256 (2005): Applied Washington’s longer WPLA repose in preference to Oregon’s shorter repose as a matter of deterrence of unsafe design and manufacture within Washington. Used by the Supreme Court as a comparative model for weighing state interests in repose issues; here, the court found Missouri’s deterrence interest predominates because the corporate conduct occurred in Missouri.
Singh v. Edwards Lifesciences Corp., 151 Wn. App. 137 (2009): Applied California law to punitive damages while WPLA governed liability and compensatory damages, because the defendant’s conduct occurred in California and that state had the stronger deterrence interest. The court here embraces Singh’s approach as consistent with Johnson and the Restatement (Second).
Kammerer v. Western Gear Corp., 96 Wn.2d 416 (1981) and Barr v. Interbay Citizens Bank, 96 Wn.2d 692 (1981): Washington courts may award punitive damages under another state’s law (Kammerer) when the deterrence interest of that state predominates; conversely, when the actionable conduct occurred in Washington and Nevada, Florida’s punitive law did not apply (Barr). These cases stress the primacy of the place of tortious conduct in punitive-damages choice-of-law.
Bryant v. Wyeth, 879 F. Supp. 2d 1214 (W.D. Wash. 2012): Persuasive authority adopting the place-of-conduct focus when the purpose of punitive damages is to punish and deter corporate misconduct arising in the defendant’s headquarters state.
Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Insurance Co., 176 Wn. App. 168 (2013): The court distinguished this case when upholding Coghlan’s methods; there, the expert lacked support showing general acceptance for his specific back-calculation formula. Here, by contrast, the court found robust evidence of general acceptance for the use of partition coefficients and protection factors in exposure reconstruction.

Legal Reasoning

1) Choice-of-law methodology controls, not the mere selection of the WPLA

The court squarely rejects the Court of Appeals’ premise (and the dissent’s) that choosing the WPLA to define substantive liability automatically drags along the WPLA’s statute of repose and precludes a separate analysis for other issues. The WPLA contains no statutory directive modifying Washington’s common-law conflicts rules. It expressly states Washington product law is “modified only to the extent set forth” in the act. The legislature knows how to modify conflicts rules when it wishes, as shown by the borrowing statute for limitations (RCW 4.18.020). It did not do so for repose or punitive damages.

The court therefore applies Washington’s established, issue-by-issue analysis under Johnson and the Restatement (Second), emphasizing that “dépeçage” is better understood as the occasional result of that analysis (applying different states’ laws to different issues), not the methodology itself.

2) Missouri law governs repose

The court identifies a true conflict: the WPLA includes a flexible “useful safe life” repose regime with a rebuttable 12-year presumption; Missouri has no product liability statute of repose. The court weighs the states’ contacts and, critically, their policies concerning repose:

Washington’s WPLA repose sought uniformity and protection for “product sellers” balanced against consumer compensation, but applying Washington repose here would not advance either the consumer-compensation goal or the interest in protecting businesses “located primarily in Washington” from indefinite liability.
Missouri, by not enacting a repose statute, deliberately favors full compensation and deterrence of wrongful corporate conduct within its borders. Pharmacia’s headquarters and key corporate functions (marketing, medical testing, warnings decisions) were in Missouri; the tortious conduct occurred there. Pharmacia ceased PCB production before the WPLA even existed, undermining any claimed reliance on Washington repose protection.

Balancing those interests, the court determines Missouri has the most significant relationship to the repose issue. Applying Missouri’s lack of repose therefore does not distort Washington’s legislative goals.

3) Missouri law governs punitive damages

On punitive damages, the Restatement (Second) and Washington precedent give primacy to the place of wrongful conduct when punitive damages serve punishment and deterrence. Missouri’s standard requires proof that the defendant acted with “complete indifference to or conscious disregard for the safety of others.” Given that Pharmacia’s relevant corporate decisions were made in Missouri, that state’s interest predominates. Washington’s policy against punitive damages does not give it a contrary interest in this case, and Washington courts routinely “recognize” punitive damages awarded under another state’s law when choice-of-law principles warrant it.

4) No theory-specific punitive interrogatory was required

The Court of Appeals erred by conditioning punitive damages on a showing that the underlying liability theory is among those recognized by Missouri product liability law (for example, it questioned whether Missouri recognizes postsale failure to warn). The Supreme Court explains that this misapprehends the structure of the case. Liability and compensatory damages were tried under the WPLA; punitive damages were tried under Missouri law. The jury was properly instructed that it could award punitive damages if it found the Missouri “complete indifference” standard satisfied based on any of the WPLA theories on which it found liability. Nothing in Missouri law required the jury to specify which underlying theory supported punitive damages in this posture.

5) Coghlan’s exposure reconstruction satisfies Frye and ER 702

Washington adheres to Frye, which asks whether the underlying theory and methodology are generally accepted in the relevant scientific community. ER 702 then asks whether the testimony will assist the trier of fact and was reliably applied.

The court concludes that exposure reconstruction is a generally accepted function of industrial hygiene, and both challenged methods are rooted in generally accepted frameworks:

Partition coefficients with carpet samples (Guo study): Using source-sink dynamics and published partition coefficients to estimate historical air concentrations from measured concentrations in a sink (here, carpet) is generally accepted. The record, bolstered by a full Frye hearing in a related case, shows the use of partition coefficients across analogous contexts and peer-reviewed literature. Coghlan acknowledged assumptions and uncertainties (e.g., equilibrium timing, possible cross-contamination) and presented ranges rather than single-point estimates—quintessential matters for weight, not admissibility.
Protection factors from New York schools (Thomas study): Deriving a protection factor from pre- and post-remediation data and applying it to post-remediation measurements at a similar site to estimate pre-remediation levels is a well-accepted industrial hygiene practice, used to reconstruct exposures and to predict remediation efficacy. Coghlan demonstrated sufficient similarity to support a reliable application and again presented ranges to reflect uncertainty.

Because the court finds both methods satisfy Frye and were reliably applied, it reverses the Court of Appeals’ partial exclusion and upholds admission under ER 702.

Impact

A. Conflicts of law in Washington: reinforced and clarified

Issue-by-issue analysis is mandatory: Courts must continue to isolate the precise issues that present conflicts (e.g., repose, punitive damages, damages caps) and apply the law of the state with the most significant relationship to each. The WPLA does not alter that methodology.
Dépeçage as a permissible result: The court adopts a careful vocabulary. Dépeçage is not the method; it is sometimes the result. Courts should be cautious not to fracture issues when doing so would distort a state’s policy, but where policies are advanced rather than distorted, applying different laws to different issues is not only permitted but often required.
Repose and punitive damages are separable from liability: Litigants should expect separate conflicts analyses for repose and punitive damages, even when WPLA governs liability. That can mean a foreign state’s lack of repose and allowance of punitive damages applies to a WPLA claim.
Verdict management: In WPLA cases where punitive damages are governed by foreign law, a unitary punitive-damages interrogatory may be sufficient so long as instructions properly articulate the foreign punitive standard. Trial courts need not compel theory-specific punitive interrogatories unless a case-specific reason exists (e.g., differing applicable standards or parties).

B. Substantive consequences for product and toxic tort litigation

Forum and corporate locus strategies: For national manufacturers headquartered elsewhere, Washington courts may apply the headquarters state’s punitive and repose rules to WPLA cases. Plaintiffs and defendants should tailor conflicts arguments to the locus of the corporate misconduct and the competing policies each state seeks to advance.
Exposure reconstruction evidence: The court’s embrace of partition coefficients and protection factors in PCB exposure reconstruction (with careful attention to assumptions and ranges) will influence admissibility across toxic tort contexts beyond PCBs. The opinion underscores that methodological criticisms are typically for cross-examination and weight, not gatekeeping, when the foundational approach is generally accepted.
SVEC-related litigation: With over 250 claimants across 17 related lawsuits, this opinion will likely govern both conflicts and expert admissibility rulings in those cases, reducing retrial risk and promoting consistent results.

Complex Concepts Simplified

Issue-by-issue conflicts analysis: When different states’ laws would produce different outcomes on a particular question (e.g., whether punitive damages are available), the court decides which state has the most significant relationship to that issue specifically, not to the whole case in the abstract.
Dépeçage: A French term often used to describe applying different states’ laws to different issues in the same case. It is an occasional result of proper issue-by-issue conflicts analysis, not a methodology of its own. Courts should avoid dépeçage when it would distort a state’s policy by fragmenting highly interrelated rules.
Statute of repose vs. statute of limitations: A statute of limitations bars a claim if not timely filed after accrual; a statute of repose can extinguish a claim altogether after a set period, regardless of when the harm was discovered. Washington’s borrowing statute addresses limitations, but not repose, in conflicts analysis.
Frye vs. ER 702: Under Frye, scientific methods must be generally accepted in the relevant field. ER 702 requires that expert testimony assist the trier of fact and be reliably applied. Washington uses Frye (not Daubert) for scientific general acceptance.
Partition coefficient: A ratio describing how a chemical distributes between two media (e.g., carpet and air) at equilibrium. If you know the chemical’s concentration in one medium and the partition coefficient, you can estimate its concentration in the other medium.
Protection factor: A ratio comparing post-remediation contaminant levels to pre-remediation levels, used to estimate what earlier concentrations likely were or to predict remediation effects.
Missouri punitive standard: Missouri permits punitive damages if the defendant acted with “complete indifference to or conscious disregard for the safety of others.” This focuses on the character of the defendant’s conduct, often pointing to the place where corporate decisions were made.

Discussion of the Dissent

Justice Gordon McCloud would treat the WPLA’s statute of repose as “integrated” into any WPLA claim, thus precluding a separate conflicts analysis for repose once the parties agree WPLA provides the substantive basis of liability. The dissent emphasizes text and legislative balancing in RCW 7.72.060 (useful safe life and the 12-year presumption), and argues the majority’s approach risks the kind of “smorgasbord” dépeçage some courts warn against. The majority responds that the WPLA contains no choice-of-law directive and that long-settled Washington conflicts doctrine requires issue-by-issue analysis; careful application of that analysis prevents policy distortion. The majority also notes that the legislature has expressly modified conflicts methodology when it chose to (e.g., limitations via RCW 4.18.020) but did not do so for repose or punitive damages.

Practical Guidance

In WPLA cases, brief conflicts of law separately for each disputed issue—liability, compensatory damages, punitive damages, statutes of repose—applying Restatement (Second) §§ 6, 145, and, where relevant, 171.
For punitive damages, focus on the locus of the alleged corporate misconduct and the deterring state’s interest. Washington courts will apply foreign punitive law when that state’s policy is advanced by doing so.
On repose, prepare to address whether applying the forum’s repose would meaningfully advance the forum’s policies in the case, especially when the defendant is out-of-state and the corporate conduct occurred elsewhere.
For exposure reconstruction, document general acceptance of the method (not just the conclusion). Use peer-reviewed literature and testimony from industrial hygienists to establish acceptance of partition coefficients and protection factors. Present ranges and explain assumptions to satisfy ER 702.
Verdict forms: When liability law and punitive law come from different states, ensure jury instructions clearly state the foreign punitive standard. A general punitive interrogatory may suffice if instructions correctly state the law and the case does not require theory-specific delineation.

Conclusion

Erickson v. Pharmacia powerfully reaffirms Washington’s commitments to nuanced conflicts analysis and principled evidentiary gatekeeping. The court clarifies that the WPLA does not supplant Washington’s issue-by-issue conflicts methodology; instead, courts must apply the law of the state with the most significant relationship to each discrete issue. Here, that meant Missouri law governs both repose and punitive damages because Missouri is where the defendant’s corporate decisions occurred and where deterrence policies are centered. The decision also gives clear guidance that punitive damages can be awarded under foreign law in WPLA actions without theory-specific special interrogatories when the jury is properly instructed on the foreign standard.

Equally important, the court endorses the admissibility, under Frye and ER 702, of exposure reconstruction techniques grounded in generally accepted methods—partition coefficients and protection factors—recognizing that critiques of assumptions and analogies generally go to weight rather than admissibility.

Across Washington product and toxic tort litigation, Erickson will have immediate and substantial effects: it restores a large verdict for the SVEC teachers, shapes the trajectory of pending SVEC-related cases, and sets enduring guideposts on conflicts, punitive damages, repose, verdict design, and scientific gatekeeping.