## Facts

- A pediatrician prescribed Somophyllin Oral Liquid, a theophylline-based asthma drug manufactured by Fisons, to a two-year-old patient.
- The patient suffered seizures from excessive theophylline levels and sustained severe, permanent brain damage.
- The patient’s family sued the physician for malpractice and sued Fisons on product-liability theories; the physician asserted cross-claims against Fisons, including claims under the Consumer Protection Act (CPA) and product liability.
- The physician’s malpractice insurer entered a high–low settlement with the family, including a loan payment creditable against later recovery from Fisons and a guaranteed minimum overall recovery.
- In discovery, the physician and insurer sought warning materials, including “Dear Doctor” letters about pediatric theophylline toxicity and dosage guidance.
- Fisons produced some materials but did not produce certain warning letters and other documents within the scope of the requests; later, additional internal and external documents surfaced indicating earlier knowledge of pediatric risks and selective warning practices.
- A discovery master and the trial court ordered broader production but declined to impose discovery sanctions; Fisons then produced a large volume of previously undisclosed documents.
- The family later settled with Fisons for $6.9 million, extinguishing contribution claims but leaving the physician’s independent claims to proceed.
- A jury found for the physician on CPA and product-liability claims (but not on fraud) and awarded damages including business-related losses and personal pain and suffering; the trial court reduced certain economic damages, awarded CPA attorney’s fees, dismissed the insurer’s separate CPA claim, and continued to deny discovery sanctions.

## Issues

1. Whether a physician has standing under the Washington CPA to sue a drug manufacturer for injury to professional reputation and related business losses arising from inadequate or misleading warnings.
2. Whether a physician may recover personal emotional/physical pain and suffering under the CPA or the Washington Product Liability Act (WPLA) when the patient, not the physician, suffered the physical injury.
3. Whether the trial court was required to impose discovery sanctions for unjustified discovery certifications and nonproduction under Civil Rule 26(g).
4. Whether federal drug-labeling regulation preempts state failure-to-warn claims and how WPLA exclusivity affects negligence-based theories.

## Decision

- The Washington Supreme Court affirmed in part, reversed in part, and remanded.
- It held the physician had CPA standing because injury to professional reputation and loss of consultations constitute injury to “business or property.”
- It held the physician could not recover personal pain and suffering under the CPA because the statute limits damages to business or property injury.
- It held the WPLA did not permit the physician to recover emotional distress that was derivative of the patient’s injury.
- It held the trial court erred by refusing to impose sanctions for discovery violations; sanctions were required under CR 26(g) once a violation without substantial justification was found.
- It rejected federal preemption of the state failure-to-warn claims and remanded for recalculation of attorney’s fees and determination of appropriate discovery sanctions, with other rulings left largely intact.

## Legal Principles

- CPA standing extends to plaintiffs who suffer injury to “business or property,” including professional reputation harm and resulting loss of business opportunities, when caused by an unfair or deceptive act in trade or commerce.
- The CPA does not authorize recovery for personal injury damages, including emotional distress and pain and suffering, because such harms are not “business or property.”
- Under the WPLA, a claimant’s recoverable harms must fit within the statute’s product-related injury framework; emotional distress suffered by a third party (here, the prescribing physician) from injury to the primary victim is not recoverable under the Act.
- CR 26(g) requires attorneys to certify discovery responses as complete and correct after reasonable inquiry; when a certification violates the rule without substantial justification, the court must impose an appropriate sanction, including expenses and attorney’s fees.
- Federal regulation of drug labeling does not, by itself, bar state-law failure-to-warn remedies where state law imposes compatible duties and provides additional relief.

## Conclusion

The court allowed a physician to pursue CPA remedies for business-reputation and practice-related losses caused by a manufacturer’s deceptive warning practices, barred recovery for the physician’s personal emotional distress under both the CPA and WPLA, and required discovery sanctions under CR 26(g) for unjustified nonproduction and misleading certifications, with remand for sanctions and fee recalculation.


Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (Wash. 1993)