Washington State Physicians Insurance Exchange & Association v. Fisons Corp.

Jennifer Pollock (plaintiff), a three-year old, was prescribed Somophyllin Oral Liquid by her doctor, Dr. James Klicpera (defendant, cross-plaintiff) to treat her asthma. Fisons Corporation (defendant) manufactured Somophyllin. Pollock suffered seizures and brain damage as a result of an interaction between Somophyllin and a viral infection. Pollock’s parents sued Dr. Klicpera and Fisons on her behalf. Dr. Klicpera and his insurance company, Washington State Physicians Insurance Exchange & Association (insurer) (cross-plaintiff), filed a cross-claim against Fisons. During the course of discovery, the insurer made several discovery requests for Fisons to produce any “Dear Doctor” letters sent to physicians regarding possible interactions between theophylline, the active ingredient in Somophyllin, and viral infections. Fisons objected to these and other discovery requests, though it did produce some documents responsive to the requests. It did not produce two letters from March and November of 1987, which were sent from Fisons to approximately 2,000 physicians. These letters warned of prescribing products containing theophylline to asthma patients who were suffering from viral infections. Counsel for Fisons knew of the existence of these letters and did not produce them. The letters were eventually sent to counsel for the insurers by an anonymous source. At trial, the jury returned a judgment for the insurer and Pollock. Following trial, the insurer sought sanctions against counsel for Fisons, arguing that they violated discovery rules by not producing the letters. The trial court denied the motion. The insurer appealed and the appellate court affirmed the decision of the trial court. The insurer appealed to the Washington Supreme Court.