Washington State Physicians Ins. Exchange & Ass’n v. Fisons Corp.
858 P.2d 1054 (Wash. 1993)

  • Dr. Klicpera prescribed a drug called theophylline to Pollock. Pollock had an adverse reaction to the drug and suffered brain damage.
  • Pollock’s parents sued Klicpera and the manufacturer of the drug, Fisons, for medical malpractice.
  • Klicpera cross-claimed against Fisons for contribution and damages and attorney’s fees under the Consumer Protection Act, as well as damages for emotional distress.
  • Pollock settled with Klicpera.
    • The settlement consisted of a $500k loan from Klicpera’s insurance company (WSPIE).
    • The settlement also agreed that Pollock would receive a minimum of $1M. If they didn’t win that money from Fisons, Klicpera (through WSPIE) would make up the difference. In exchange, the maximum liability Klicpera would have would be $1M.
      • This is known as a high-low agreement.
  • After the settlement Klicpera and Pollock were anonymously sent a letter written by Fisons which showed that the company was aware of the potential adverse reactions to theophylline.
    • This information should have been provided to Pollock and Klicpera during discovery, but Fisons had failed to provide the information.
      • Fisons argued that they had not intentionally misfiled documents to avoid discovery.
  • The Court, through a special discovery master, chose not to impose sanctions on Fisons (under Rule 37(b)), but ordered them to produce all the documents they had related to theophylline.
    • Fisons produced thousands of previously undisclosed documents, some of which were quite incriminatory and showed that Fisons failed to disclose known dangers of the drug to some physicians.
    • Klicpera appealed, the denial of sanctions, but the Appellate Court affirmed the decision to not apply sanctions.
      • Fisons argued that Klickpera failed to formally motion to compel the production of the documents (Rule 37(a)) before asking for sanctions.
      • Fisons argued that evidence of discovery abuse did not meet the required burden of proof to impose sanctions.
  • Fisons settled with Pollock for $6.9M.
  • The Trial Court then found that Klicpera was entitled to recover from Fison under the Consumer Protection Act claim and the product liability claim, but not against the fraud claim. Klicpera appealed.
    • Klicpera received about $1.2M for injury to his reputation and loss of business.
    • WSPIE was not entitled to get their $500k back from Pollock.
  • The Washington Supreme Court found that the Trial Court was in error when they did not impose sanctions on Fisons for failure to disclose (aka discovery abuse), and remanded the case.
    • The Washington Supreme Court looked to Washington Rule 26(g) (very similar to the Federal Rule 26(g)).
      • Therefore the Trial Court erred in accepting Fisons’ arguments against sanctions.
    • The Court found that Fisons was playing games with the language. They produced documents related to theophylline that used the brand name, but not document that talked about the chemical itself.
      • Klicpera’s interrogatories requested the information a number of different ways, but Fisons’ lawyers came up with ‘creative’ reasoning for not giving up the most critical documents.
      • The Court felt that there was no conceivable discovery request that could have been made by Klicpera which would have resulted in Fisons giving up the information.
      • In addition, nothing in Fisons’ replies implied that documents were not being produced.
    • Rules are clear that a party must fully answer all interrogatories and all requests, unless a clear and specific objection is made.
    • The Court felt that sanctions were mandatory in this case, but it was up to a Trial Court to determine specifically what sanctions should be applied.