Washington State Physicians Ins. Exchange & Ass'n v.
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
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
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
This information should have
been provided to Pollock and Klicpera during discovery, but Fisons had failed to provide the
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
Klicpera appealed, the
denial of sanctions, but the Appellate Court affirmed the decision to not
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
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 WashingtonRule
26(g) (very similar to the FederalRule 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 allinterrogatories 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.