FACTS OF CASE
We are asked in this case to decide whether a physician has a cause of action against a drug company for personal and professional injuries which he suffered when his patient had an adverse reaction to a drug he had prescribed. The physician claimed the drug company failed to warn him of the risks associated with the drug. If such action is legally
The physician's action began as part of a malpractice and product liability suit brought on behalf of a child who was the physician's patient. On January 18, 1986, 2-year-old Jennifer Pollock suffered seizures which resulted in severe and permanent brain damage. It was determined that the seizures were caused by an excessive amount of theophylline in her system. The Pollocks sued Dr. James Klicpera (Jennifer's pediatrician), who had prescribed the drug, as well as Fisons Corporation (the drug manufacturer and hereafter drug company) which produced Somophyllin Oral Liquid, the theophylline-based medication prescribed for Jennifer.
Dr. Klicpera cross-claimed against the drug company both for contribution and for damages and attorneys' fees under the Consumer Protection Act as well as for damages for emotional distress.
In January 1989, after nearly 3 years of discovery, Dr. Klicpera, his partner and the Everett Clinic settled with the Pollocks. The settlement agreement essentially provided that the doctors' insurer, Washington State Physicians Insurance Exchange & Association (WSPIE), would loan $500,000 to the Pollocks which would be contributed in the event of a settlement between the Pollocks and the drug company. The Pollocks were guaranteed a minimum total recovery of $1 million, and in the event of trial Dr. Klicpera agreed to remain as a party and to pay a maximum of $1 million. The settlement between the Pollocks and Dr. Klicpera was determined by the trial court to be reasonable pursuant to RCW 4.22.060.
More than 1 year after this settlement, an attorney for the Pollocks provided Dr. Klicpera's attorney a copy of a letter received from an anonymous source. The letter, dated
The Pollocks and Dr. Klicpera contended that their discovery requests should have produced the June 1981 letter and they moved for sanctions against the drug company. The request for sanctions was initially heard by a special discovery master, who denied sanctions, but who required the drug company to deliver all documents requested which related to theophylline. Documents that the drug company and its counsel had immediately available were to be produced by the day following the hearing before the special master. The remainder of the documents were to be produced within 2 weeks. The trial court subsequently denied Dr. Klicpera's request to reverse the discovery master's denial of sanctions and at the close of trial denied a renewed motion for sanctions.
The day after the hearing on sanctions, the drug company delivered approximately 10,000 documents to Dr. Klicpera's and Pollocks' attorneys. Among the documents provided was a July 10, 1985 memorandum from Cedric Grigg, director of medical communications for the drug company, to Bruce Simpson, vice president of sales and marketing for the company.
This 1985 memorandum referred to a dramatic increase in reports of serious toxicity to theophylline in early 1985 and also referred to the current recommended dosage as a significant "mistake" or "poor clinical judgment". The memo alluded to the "sinister aspect" that the physician who was the "pope" of theophylline dosage recommendation was a consultant to the pharmaceutical company that was the leading manufacturer of the drug and that this consultant was "heavily into [that company's] stocks". The memo also noted that the toxicity reports were not reported in the journal
On April 27, 1990, shortly after the 1985 memo was revealed, the drug company settled with the Pollocks for $6.9 million. The trial court determined that settlement to be reasonable, dismissed the Pollocks' claims, extinguished Dr. Klicpera's contribution/indemnity claims against Fisons pursuant to RCW 4.22.060 and reserved determination of what claims remained for trial. The trial court then ordered the lawsuit recaptioned, essentially as Dr. James Klicpera, plaintiff v. Fisons Corporation, defendant.
After a month-long jury trial, the court instructed the jury on Dr. Klicpera's claims which were based on the Consumer Protection Act, RCW 19.86, the product liability act, RCW 7.72, and common law fraud. The jury was also instructed on WSPIE's fraud claim seeking to recover the $500,000 paid in settlement to the Pollocks. The trial court ruled that WSPIE could not maintain a Consumer Protection Act cause of action against the drug company.
On a special verdict form, the jury concluded that Dr. Klicpera was entitled to recover against the drug company under his Consumer Protection Act claim and under his product liability claim, but not under the fraud claim. The jury awarded Dr. Klicpera $150,000 for loss of professional consultations, $1,085,000 for injury to professional reputation, and $2,137,500 for physical and mental pain and suffering. The jury further found Dr. Klicpera to be 3.3 percent contributorily negligent. The jury found that WSPIE was not entitled to recover under its fraud claim against the drug company the $500,000 settlement paid to the Pollocks.
The trial court awarded $449,568.18 to Dr. Klicpera as attorneys' fees under the Consumer Protection Act finding that 50 percent of the attorneys' time in the lawsuit was attributable to the Consumer Protection Act cause of action. The court denied Dr. Klicpera's request for further attorneys' fees based upon a theory of equitable indemnification.
Pursuant to the injunctive relief section of the Consumer Protection Act, the court ordered the drug company to send the June 30, 1981 letter regarding the dangers of theophylline poisoning to the Washington State Medical Association.
The drug company sought direct review by this court and we accepted review. Dr. Klicpera and his insurer (WSPIE) cross-appeal from the trial court's refusal to award discovery sanctions for the alleged discovery violations. WSPIE also appeals the trial court's dismissal of its Consumer Protection Act claim against the drug company.
The parties' 63 assignments of error raise 9 principal issues.
ISSUE ONE. Under the Consumer Protection Act, RCW 19.86, does a physician whose reputation is injured because the physician misprescribed a medication have standing to sue a drug company which engaged in unfair or deceptive trade practices?
ISSUE TWO. Does a physician who prescribes a drug which injures a patient have a cause of action to recover from a drug company for the physician's own mental pain and suffering, and attendant physical pain, under the product liability act (RCW 7.72), based on the company's failure to warn?
ISSUE FOUR. Did the trial court err in refusing to allow the physician's insurer's Consumer Protection Act claim to go to the jury?
ISSUE FIVE. Did the trial court err in excluding the testimony of the drug company's sales representative based upon Rule of Evidence 406?
ISSUE SIX. Were the physician's state law claims preempted by federal law?
ISSUE SEVEN. Should the trial court have granted a new trial or reduced the jury award based on the argument that the damages awarded were excessive?
ISSUE EIGHT. Did the trial court err in calculating the amount of attorneys' fees awarded for the Consumer Protection Act claim?
ISSUE NINE. Did the trial court err in refusing to sanction the drug company and its attorneys for discovery abuse?
The general question in this case is whether damages may be awarded to a prescribing physician who is allegedly injured by a drug company's failure to give proper warning of the dangers of a drug which the physician prescribes to a patient and, if so, under what legal theory or theories and for what kind of damages.
CONCLUSION. Under the Consumer Protection Act (RCW 19.86), a physician whose reputation is injured has standing to sue a drug company which engaged in an unfair or deceptive trade practice by failing to warn the physician of the dangers of its drug about which it had knowledge.
The Washington Consumer Protection Act (CPA), RCW 19.86.020, provides:
The leading CPA case of Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 719 P.2d 531 (1986) does not include a requirement that a CPA claimant be a direct consumer or user of goods or in a direct
At trial, the jury was properly instructed on the Hangman Ridge elements of a CPA cause of action. The jury found that
The drug company repeatedly stipulated to both the public interest element and to the trade or commerce requirement.
With regard to the causation element of the CPA, a causal link must exist between the deceptive act and the injury suffered.
In the present case the physician, in answer to a question regarding what he would have done if he had known of the information in the 1981 letter or in the 1985 memo, replied:
Report of Proceedings, at 1968. This is similar to the evidence in Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 753-56, 818 P.2d 1337 (1991), which we found was sufficient evidence to support a finding of proximate cause. The parents of the injured child in Ayers testified
There is also corroborative testimony which supports the cause-in-fact element. Dr. Dorsey testified that had Dr. Klicpera known of the syndrome (reduced clearance of the drug during viral infections) he was certain Dr. Klicpera would have conducted the laboratory testing differently. Another physician, Dr. Koran, testified essentially that if proper warnings regarding viral infections had been given and followed, Jennifer Pollock would not have suffered seizures. Another doctor, Dr. Redding, also testified that if proper warning had been given, and followed, that Jennifer's seizures would not in all probability have occurred.
One of the key disputed facts addressed throughout the trial is what Dr. Klicpera knew, or should have known, about theophylline from sources aside from the drug company's warning. The extent of the physician's knowledge was a jury question,
The drug company argues that the trial court erred because it allowed Dr. Klicpera to recover for "litigation related" damages. To the extent the drug company is arguing that direct "litigation related" damages were awarded, that is not supported by the record. The trial court ruled that Dr. Klicpera's "so-called litigation expense", including time loss due to attendance at deposition, preparation for trial, and at trial was not recoverable under any of the legal theories advanced.
The drug company also argues that Dr. Klicpera was suing based solely on his having been sued for malpractice by the Pollocks and that because he was determined to be 3.3. percent negligent
Accordingly, we conclude that the jury's determination that Dr. Klicpera was 3.3 percent contributorily negligent does not bar his Consumer Protection Act cause of action which was based on the drug company's unfair or deceptive acts or practices.
In summary, given the liberal construction that is mandated by the CPA,
The remaining question on this issue is whether damages for pain and suffering may be awarded under the CPA.
We therefore conclude that the damages the jury awarded for loss of reputation are compensable under the Consumer Protection Act claim, so long as the damages are supported by the evidence. However, the damages awarded for the physician's mental "pain and suffering" (and its objective physical manifestations) are not compensable under the CPA.
As the trial court and the litigants correctly recognized, such pain and suffering damages would only be compensable if a product liability action is cognizable under the facts of this case. This then brings us to the issue of whether the product liability cause of action was properly submitted to the jury.
CONCLUSION. We conclude that a physician who prescribes a drug which injures a patient does not have a cause of
The manufacturer's liability section of the product liability act, RCW 7.72.030(1), provides as follows:
In this case we are faced with the unusual situation of a plaintiff (who is not a relative of the injured party) seeking to recover pain and suffering damages as a result of the physical injury suffered by another. Because the Consumer Protection Act (which is a viable cause of action under these facts) does not allow this type of damages, we must determine whether under the facts presented the Legislature intended to allow such damages under the product liability act (PLA) (RCW 7.72).
Although the drug company asks us to disallow a products liability cause of action because the physician is not a proper "claimant" under the meaning of the PLA, or because these attenuated damages are not the proximate cause of the breach, we choose to resolve this case on narrower grounds. We perceive the most precise inquiry here to be whether these pain and suffering damages are the type of "harm" contemplated as recoverable by the Legislature under the PLA.
The PLA, RCW 7.72.010(6), defines "harm" as follows:
Although most of the definitional section of the Washington PLA was based upon the Model Uniform Product Liability
Our cases which involve intentional torts do not provide a basis to award damages for pain and suffering here. In those cases, emotional distress damages can be awarded as a component of total damages.
Two cases in other jurisdictions have allowed professionals to recover their own damages when their patients were injured by a product. However, only pecuniary damages were recovered; emotional pain and suffering were either not sought or were disallowed. In Oksenholt v. Lederle Labs., 294 Or. 213, 656 P.2d 293 (1982), a doctor who prescribed a drug which caused injury to his patient was allowed to recover lost earning capacity and lost income caused by harm to the
Because we conclude that the facts of this case do not support a cause of action under the PLA for the doctor's pain and suffering damages, we need not address the drug company's other arguments as to why the PLA should not apply.
CONCLUSION. The Washington product liability act (RCW 7.72) created a single cause of action for product-related harms, and supplants previously existing common law remedies, including common law actions for negligence.
Dr. Klicpera argues that if a product liability claim under the PLA is disallowed by this court, we should then allow a negligence claim based upon the drug company's failure to warn of its product's dangers. We decline to do so. After the enactment of the PLA, such a claim is not viable in a products case.
The PLA does allow claimants to bring a Consumer Protection Act claim since that cause of action has been specifically exempted from the preemptive effect of the product liability act.
CONCLUSION. The trial court did not err in declining to allow WSPIE's Consumer Protection Act claim to be submitted to the jury.
Dr. Klicpera's insurer, WSPIE, argues that the $500,000 it paid to the Pollocks in settlement of the malpractice claim should have been recoverable from the drug company under the Consumer Protection Act. The trial court did allow WSPIE's fraud cause of action against the drug company to go to the jury. However, the jury found in favor of the defendant drug company on this issue. The trial court declined to allow WSPIE's Consumer Protection Act claim to be submitted to the jury. We agree.
RCW 4.22.060(2) provides in pertinent part:
After the drug company settled with the Pollocks, the court held a reasonableness hearing and ordered that "Dr. Klicpera's contribution/indemnity claims against Fisons are extinguished pursuant to RCW 4.22.060." WSPIE was acting on behalf of its insured and hence could have been subrogated to the rights of its insured. However, once Fisons settled, Dr. Klicpera's contribution rights for reimbursement for amounts paid to the Pollocks were extinguished. To allow the insurance company to bring a consumer protection action against Fisons for what is in reality contribution or indemnity would be to allow an "end-run" around the tort reform act (RCW 4.22).
As Senator Talmadge, Chairman of the Senate Select Committee on Tort and Product Liability Reform, explained,
Talmadge, Washington Product Liability Act, 5 U. Puget Sound L. Rev. 1, 18-19 (1981-1982).
Therefore, neither the doctor, nor the doctor's insurer, is entitled to recover settlement amounts paid to the Pollocks after their contribution/indemnity rights were extinguished.
The trial court did not err when it disallowed WSPIE's Consumer Protection Act claim.
CONCLUSION. We hold that the trial court did not err in excluding the testimony of the drug company's sales representative based upon Rule of Evidence 406.
The drug company sought to introduce testimony from its sales representative, Kevin Cobley, that it was his habit to discuss the dangers of theophylline and a particular study which included information about the risks of theophylline when he visited physicians, and, therefore, he must have discussed those risks with Dr. Klicpera. Mr. Cobley did not have any specific memory of talking with Dr. Klicpera about the study. He testified, however, that his usual "habit" was to discuss the subject, and this testimony was sought to be introduced pursuant to ER 406.
Although the rule does not define "habit", the advisory committee note to Fed. R. Evid. 406 quotes Professor McCormick's description of habitual behavior as "consisting of semi-automatic, almost involuntary and invariabl[y] specific responses to fairly specific stimuli."
Mr. Cobley told the trial court that his presentation to physicians "would go virtually the same way with every physician". In response to that court's question whether he could testify that he did discuss these things with Dr. Klicpera, Mr. Cobley responded "I would say it's highly unlikely that I did not".
CONCLUSION. We hold that the plaintiffs' state law claims were not impliedly preempted by the Federal Food and Drug Administration (FDA) guidelines.
The drug company argues that the doctor's state law remedies are preempted by the Federal Food and Drug Administration's issuance of uniform class labeling guidelines for theophylline. We disagree.
There is no allegation here of express preemption,
(Footnotes omitted.) 6 American Law of Products Liability § 89:9, at 17 (3d ed. 1987). This conclusion is in accord with the weight of authority.
As the Oregon Supreme Court has pointed out:
Given the strong presumption against federal preemption of state laws regarding health and safety issues,
CONCLUSION. The trial court did not err in refusing to grant a new trial or to reduce the damage award because of the amount of damages awarded by the jury.
(Footnotes omitted.) Washburn, 120 Wn.2d at 268-69 (quoting Bingaman).
The drug company relies upon Himango v. Prime Time Broadcasting, Inc., 37 Wn.App. 259, 680 P.2d 432, review denied, 102 Wn.2d 1004 (1984) in which the Court of Appeals concluded that the jury's belief that the plaintiff's reputation had suffered had to have been based on speculation. However, in Himango, the appellate court was deciding if the trial court properly reduced the jury's verdict and not, as here, whether the appellate court should reduce a verdict despite the trial court's refusal to do so.
Bearing the very restrictive appellate review standard in mind, our inquiry is whether the award is outside the range of substantial evidence in the record, shocks the conscience of the court or clearly appears to have been arrived at as a result of passion or prejudice.
The evidence the jury heard regarding reputation damage was Dr. Klicpera's own opinion as to such loss and a statement by the trial court that there had been newspaper accounts reporting Dr. Klicpera's alleged medical malpractice. Dr. Klicpera essentially testified that he thought there was certainly a loss to his reputation in the community, and that other physicians had been ignoring him and that he no longer enjoyed his practice and had taken steps to find administrative work.
Pursuant to the drug company's request, the trial court initially ruled that the newspaper articles regarding Dr. Klicpera's incompetence were inadmissible. However, after expressing concern that Dr. Klicpera's reputation damages would not be provable without reference to the press articles, the court subsequently read the following statement to the jury:
This statement resulted from the fact that there was a front page article in the physician's hometown newspaper which indicated that Dr. Klicpera knew enough about the
There was, however, one portion of damages which was awarded under the Consumer Protection Act which must be disallowed. The jury awarded $150,000 for income loss due to lost consultations; the trial court reduced that award to $2,250. The problem with this award is that it conflicts with the trial court's conclusion that damages based upon income lost due to time spent for trial were not recoverable. There is no challenge to this conclusion.
The physician testified that because of his unavailability due to this trial, he missed some consultations he otherwise would have done; these consultations were all foregone because of time spent in or preparing for trial. The trial court had disallowed damages based upon income lost due to time spent for the lawsuit. The trial court recognized that "all of the losses of consultation ... were because he was unavailable" due to trial matters. However, the trial court later reduced the consultation award from $150,000 to $2,250. In light of the trial court's unchallenged conclusion that damages for time lost due to trial preparation were not recoverable, we conclude
The drug company also argues that the award was based upon obvious passion or prejudice. It bases this partly on certain portions of the plaintiffs' attorneys' closing argument. They argue that the court order, stating that alleged litigation fraud and alleged discovery violations should not be presented to the jury, was violated in closing argument. However, the court order, while disallowing reference to discovery disputes, allowed evidence regarding whether certain documents were known to plaintiffs prior to settlement and whether experts had access to the discovery documents when opinions were expressed. While the timing of witnesses' knowledge may have implied "litigation fraud" or discovery violations, such testimony (introduced without objection) and argument referring to it were not in violation of the trial court's order.
In closing argument, the physician's attorney drew a comparison between the number of theophylline side effects reported in a Group Health study (which had been described to the jury during trial) to the number of people who would be shot per 10,000 people if a terrorist were to shoot a given number of times inside Husky Stadium. The drug company now argues that this analogy was so misleading that this court should overturn the jury's decision because it was based on passion or prejudice. This argument, however, was generally based upon the statistics in the study and upon numbers testified to by Fisons' own expert. Most importantly, there was no contemporaneous objection to this analogy. Any perceived inaccuracies in the analogy drawn by plaintiffs' counsel could have been drawn to the attention of the trial court which could have made a curative instruction if necessary.
Since we have concluded that the physician's claims of pain and suffering are not compensable, we do not address the issue of sufficiency of the evidence to support the jury's pain and suffering award of $2,137,500.
CONCLUSION. The trial court did not abuse its discretion in its calculation of the attorneys' fees awarded pursuant to the Consumer Protection Act.
The drug company argues that the trial court erred in (1) calculating the attorneys' fees based upon an "enhanced hourly rate" and (2) by using a 1.5 multiplier of the lodestar based upon quality and contingency.
Attorneys seeking fees must provide reasonable documentation of work performed to calculate the number of hours and when attorneys have "an established rate for billing clients", that rate will likely be considered as reasonable.
In this case, the trial court established the hourly fee by averaging the reduced rate charged by the attorneys in medical malpractice defense cases with the hourly rate charged in their other practice. There is no convincing showing that the trial court abused its discretion in arriving at the hourly fee in this manner. That hourly fee was multiplied by 50 percent of the hours expended during the entire case, the amount the trial court decided was attributable to theories necessary to prove the Consumer Protection Act claim. We find no abuse of discretion in this conclusion and decline to disturb the trial court's calculation of the "lodestar" fee.
The trial court then multiplied the lodestar amount by 1.5 based upon the fact that part of the fees were contingent upon success, and on the quality of the work performed by plaintiffs' attorneys in a difficult case.
This case was tried partially on a guaranteed fee arrangement and the remainder on a contingency agreement. Whether the difficult and novel nature of this case combined with what the court found to be high quality work and partial contingency supports the use of a 1.5 multiplier is a close question. The trial court found that the likelihood of success was low because Dr. Klicpera's attorneys did not initially have access to what turned out to be the determinative "smoking gun" documents. The 50 percent premium which reflects the partially contingent nature of the representation together with the unusually high quality of work performed in this novel case does not appear to us from the record to be an abuse of the trial court's discretion. This being a close question, we defer to the trial court's discretion and sustain its calculation of attorneys' fees.
CONCLUSION. The trial court applied an erroneous legal standard when ruling on the motion for sanctions for discovery abuse and erred when it refused to sanction the drug company and/or its attorneys for violation of CR 26(g).
The doctor and his insurer, Washington State Physicians Insurance & Exchange Association (hereinafter referred to
Although interrogatories and requests for production should have led to the discovery of the "smoking gun" documents, their existence was not revealed to the doctor until one of them was anonymously delivered to his attorneys.
A motion for sanctions based on discovery abuse was heard first by a special discovery master on March 28, 1990, before the child's case was settled. The special master ruled that he could not find "on the basis of this record that there was an intentional withholding of this document." (Italics ours.) Clerk's Papers, at 9693. The special master then turned to what he determined was the more relevant issue, additional and full discovery of other theophylline-related documents in the drug company's possession. The special master ordered the drug company's attorneys to turn over any immediately available documents concerning theophylline to attorneys for the child and the doctor by noon the next day and to review the remainder of the drug company's files and produce other relevant documents at the end of 2 weeks. The next day, the second "smoking gun", a 1985 internal memorandum describing theophylline toxicity in children, was delivered along with about 10,000 other documents.
Although other documents were relevant to the case, the two smoking gun documents were the most important. The first, a letter, dated June 30, 1981, discussed an article that
Both documents contradicted the position taken by the drug company in the litigation, namely, that it did not know that theophylline-based medications were potentially dangerous when given to children with viral infections.
After the 1985 memorandum was discovered and still prior to trial, the special master's denial of the sanctions motion was appealed and affirmed, without specific findings, by a judge of the Superior Court (Judge Knight), who essentially deferred to the special master.
The motion for sanctions was renewed and heard by another judge of the Superior Court, the trial judge (Judge French), at the close of trial. The trial court declined to impose sanctions, deferring to the earlier decisions of the special master and Judge Knight. The doctor then appealed the denial of his sanctions motion directly to this court.
The standard of review to be applied to sanctions decisions under CR 11 and CR 26(g) has not yet been specifically articulated by this court.
CR 26(g) was added to our civil rules in 1985; it provides as follows:
Because it is essentially identical to Rule 26(g), this court may look to federal court decisions interpreting that rule for guidance in construing CR 26(g).
(Citations omitted. Italics ours.) Amendments to the Federal Rules of Civil Procedure advisory committee note, 97 F.R.D. 166, 216-19 (1983).
The concept that a spirit of cooperation and forthrightness during the discovery process is necessary for the proper functioning of modern trials is reflected in decisions of our Court of Appeals. In Gammon v. Clark Equip. Co., 38 Wn.App. 274, 686 P.2d 1102 (1984), aff'd, 104 Wn.2d 613, 707 P.2d 685 (1985), the Court of Appeals held that a new trial should have been ordered because of discovery abuse by the defendant. Then Court of Appeals Judge Barbara Durham wrote for the court:
(Citations omitted.) Gammon, 38 Wn. App. at 280.
It is with these purposes in mind, that we now articulate the standard to be applied by trial courts which are asked to impose sanctions for discovery abuse.
On its face, Rule 26(g) requires an attorney signing a discovery response to certify that the attorney has read the response and that after a reasonable inquiry believes it is (1) consistent with the discovery rules and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; (2) not interposed for any improper purpose such as to harass or cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had, the amount in controversy, and the importance of the issues at stake in the litigation.
In applying the rules to the facts of the present case, the trial court should have asked whether the attorneys' certifications to the responses to the interrogatories and requests for production were made after reasonable inquiry and (1) were consistent with the rules, (2) were not interposed for any improper purpose and (3) were not unreasonable or unduly burdensome or expensive. The trial court did not have the benefit of our decision to guide it and it did not apply this standard in this case.
Instead, the trial court considered the opinions of attorneys and others as to whether sanctions should be imposed. This was error. Legal opinions on the ultimate legal issue before the court are not properly considered under the guise of expert testimony.
The trial court then denied sanctions, in part because: (1) The evidence did not support a finding that the drug company intentionally misfiled documents to avoid discovery; (2) neither the doctor nor the child had formally moved for a definition of "product" and neither had moved to compel production of documents or answers before requesting sanctions; (3) the conduct of the drug company and its counsel
The trial court erred in concluding as it did. As stated above, intent need not be shown before sanctions are mandated. A motion to compel compliance with the rules is not a prerequisite to a sanctions motion. Conduct is to be measured against the spirit and purpose of the rules, not against the standard of practice of the local bar. Furthermore, the burden placed on the doctor by the trial court in this regard was greater than that mandated under the rule.
We now measure the conduct of the drug company and its attorneys against the standard set forth in the rule.
The following is but a sampling of the discovery between the parties.
The first discovery documents directed to the drug company were prepared by the child's attorney and were dated September 26, 1986. The interrogatories contained a short definition section stating in part:
Clerk's Papers, at 4103.
These first interrogatories requested information about "the product" which is manufactured by the drug company, Fisons, as well as about theophylline, a drug entity which is the primary ingredient of the drug company's product Somophyllin Oral Liquid. The interrogatory regarding theophylline was answered by the drug company, as were the interrogatories about "the product".
The drug company's responses to discovery requests contained the following general objection:
See, e.g., Clerk's Papers, at 7399.
Theophylline is not a Fisons "product". Furthermore, because theophylline is the primary ingredient in Somophyllin Oral Liquid, any document focusing on theophylline would, necessarily, be one regarding Somophyllin Oral Liquid.
In November 1986 the doctor served his first requests for production on the drug company. Four requests were made. Three asked for documents concerning Somophyllin. Request 3 stated:
The drug company's response was:
Clerk's Papers, at 8458.
The child's first requests for production, and the responses thereto, included the following:
(Italics ours.) Clerk's Papers, at 6329-30.
The doctor further requested:
(Some italics ours.) Clerk's Papers, at 3868.
These requests, and others of a similar tenor, should have led to the production of the smoking gun documents.
When the child or the doctor attempted to see information from the files of other products, the drug company objected. For example:
(Some italics ours.) Clerk's Papers, at 4124.
To requests asking for correspondence, memoranda, articles and other documents "concerning", "regarding" or "covering" Somophyllin Oral Liquid, the drug company generally objected to the requests and then stated
See, e.g., Clerk's Papers, at 7240-55.
In support of the drug company's motion for a protective order, the drug company's in-house counsel and its Seattle
Clerk's Papers, at 6301-02.
The affidavit goes on to say that the drug company had "agreed to make available those documents reasonably related to plaintiffs' allegations against Fisons." Clerk's Papers, at 6302.
In its memorandum to the court in support of the motion for a protective order, the attorney for the drug company outlined the documents contained in the regulatory file on Somophyllin Oral Liquid. That file purportedly contained complete information regarding the drug including: Summaries of adverse reactions associated with the use of the medication that had been reported to Fisons; all promotional or advertising material disseminated by Fisons with regard to the medication; the complete product file for Somophyllin Oral Liquid, which contained records of communications
Clerk's Papers, at 6277. A footnote to this comment states "Fisons has also agreed to make available to plaintiffs an index of periodicals maintained in Fisons' internal library as well as certain other documents." Clerk's Papers, at 6277 n. 3.
The drug company's responses and answers to discovery requests are misleading. The answers state that all information regarding Somophyllin Oral Liquid which had been requested would be provided. They further imply that all documents which are relevant to the plaintiffs' claims were being produced. They do not specifically object to the production of documents that discuss the dangers of theophylline, but which are not within the Somophyllin Oral Liquid files. They state that there is no relevant information within the cromolyn sodium product files.
It appears clear that no conceivable discovery request could have been made by the doctor that would have uncovered the relevant documents, given the above and other responses of the drug company. The objections did not specify that certain documents were not being produced. Instead the general objections were followed by a promise to produce requested documents. These responses did not comply with either the spirit or letter of the discovery rules and thus were signed in violation of the certification requirement.
The drug company does not claim that its inquiry into the records did not uncover the smoking gun documents. Instead, the drug company attempts to justify its responses by arguing as follows: (1) The plaintiffs themselves limited the scope of discovery to documents contained in Somophyllin Oral Liquid files. (2) The smoking gun documents were not intended to relate to Somophyllin Oral Liquid, but rather were intended to promote another product of the drug company.
If the discovery rules are to be effective, then the drug company's arguments must be rejected.
First, neither the child nor the doctor limited the scope of discovery in this case. Attorneys for the child, the doctor and the drug company repeatedly referred to both theophylline and Somophyllin Oral Liquid. There was no clear indication from the drug company that it was limiting all discovery regarding Somophyllin Oral Liquid to material from that product's file. Nor was there any indication from the drug company that it had information about theophylline, which is not a Fisons "product", or information regarding Somophyllin Oral Liquid that it was not producing because the information was in another product's file. The doctor was justified in relying on the statements made by the drug company's attorneys that all relevant documents had been produced and he cannot be determined to have impliedly, albeit unknowingly, acquiesced in limiting the scope of discoverable information.
Second, the drug company argues that the smoking gun documents and other documents relating to theophylline were not documents regarding Somophyllin Oral Liquid because they were intended to market another product. No matter what its initial purpose, and regardless of where it had been filed, under the facts of this case, a document that warned of the serious dangers of the primary ingredient of Somophyllin Oral Liquid is a document regarding Somophyllin Oral Liquid.
Third, the discovery rules do not require the drug company to produce only what it agreed to produce or what it was ordered to produce. The rules are clear that a party
Fourth, the drug company further attempts to justify its failure to produce the smoking guns by saying that the requests were not specific enough. Having read the record herein, we cannot perceive of any request that could have been made to this drug company that would have produced the smoking gun documents. Unless the doctor had been somehow specifically able to request the June 30, 1981, "dear doctor" letter, it is unlikely that the letter would have been discovered. Indeed the drug company claims the letter was not an official "dear doctor" letter and therefore was not required to be produced.
Fifth, the drug company's attorneys claim they were just doing their job, that is, they were vigorously representing their client. The conflict here is between the attorney's duty to represent the client's interest and the attorney's duty as an officer of the court to use, but not abuse the judicial process.
Schwarzer, Sanctions Under the New Federal Rule 11 — A Closer Look, 104 F.R.D. 181, 184 (1985).
Schwarzer, 104 F.R.D. at 205.
In making its determination, the trial court should use its discretion to fashion "appropriate" sanctions. The rule provides that sanctions may be imposed upon the signing attorney, the party on whose behalf the response is made, or both.
The trial court's denial of sanctions is reversed and the case is remanded for a determination of appropriate sanctions.
In sum, we hold as follows: Dr. Klicpera did have standing to bring a Consumer Protection Act claim and damages for
Affirmed in part; reversed in part; and remanded to the trial court for imposition of sanctions.
DOLLIVER, SMITH, and GUY, JJ., concur.
BRACHTENBACH, J. (concurring in part/dissenting in part)
I fully concur with the majority except on issue 2. I strongly disagree with the reasoning and result on issue 2 and respectfully dissent.
The issue is whether a drug manufacturer is liable to a physician for damages for his physical and mental injuries when the drug manufacturer proximately caused those damages because it failed to warn the physician of known risks in the use of its drug.
Plaintiff was the pediatrician treating a 2-year-old child. He prescribed a drug manufactured and distributed by defendant.
The jury found that the resulting publicity and malpractice action against plaintiff, Dr. James A. Klicpera, damaged his professional reputation. The majority affirms that part of the special verdict.
But Dr. Klicpera contends that he suffered more than loss of or damage to his professional reputation. He personally suffered emotional damages with accompanying physical illness; that evidence will be discussed hereafter. It is for these personal damages that Dr. Klicpera sought damages under the product liability act (PLA), RCW 7.72. The jury was properly instructed as to the law of the PLA and was properly instructed as to the type of damages recoverable. The jury made its award; the trial court refused to overturn the jury verdict.
Yet the majority sets aside the jury verdict and reverses the trial court, as a matter of law. It is essential to understand that the majority reverses the jury and the trial court on a theory of its own, a theory never raised, briefed or argued by the defendant.
This dissent will first make an abbreviated review of the product liability act as it relates to this cause of action; second, I will examine the majority, and third, provide a more detailed analysis of the PLA, particularly showing that the legislative history, not examined by the majority, supports this verdict. Because I would affirm the verdict, it is necessary to examine defendant's challenges to sufficiency of proof of proximate cause and its challenges to the amount of the verdict.
The PLA contains a number of definitions which are critical to understanding it and its application, but the following are the essential considerations supporting the plaintiff's verdict. The PLA expressly recognizes a product liability claim of the very type brought here, i.e., failure to discharge a duty to warn or instruct, whether negligent or innocent. RCW 7.72.010(4). Liability is imposed specifically if adequate
The PLA also defines who is a "claimant", i.e., who is a proper person to make a product liability claim. The definition is remarkably broad: "`Claimant' includes any person or entity that suffers harm. A claim may be asserted under this chapter even though the claimant did not buy the product from, or enter into any contractual relationship with, the product seller." RCW 7.72.010(5). Defendant argues that plaintiff doctor did not have standing to sue under the PLA, i.e., defendant contends, as a matter of law, plaintiff was not a claimant as defined in the PLA. This issue was not submitted to the jury. Unless plaintiff is not a proper claimant, as a matter of law, defendant is foreclosed on this issue. The majority never addresses this issue.
As noted, a claimant is any person that suffers harm. The term "harm" is also strikingly broad in definition: "`Harm' includes any damages recognized by the courts of this state ...." (Italics mine.) RCW 7.72.010(6). The definition goes on to exclude economic loss under the Uniform Commercial Code, RCW Title 62A.
The majority rests its decision against the verdict solely on the basis that plaintiff's damages are not the type of harm recoverable under the above definition. Majority, at 319. Thus, the majority necessarily holds that the physical and emotional suffering of plaintiff are not within "any damages recognized by the courts of this state". RCW 7.72-.010(6).
Defendant never raises, briefs nor argues that the damages suffered by plaintiff are not within the statutory definition of "harm". Yet this is the exclusive focus and foundation of the majority's holding. Defendant's opening brief, from the table
In a nutshell, defendant's only challenge is to WHO can be a plaintiff under the PLA; the majority's singular inquiry is WHAT can be recovered, describing that as "the most precise inquiry". I suggest it is the wrong question, but even if it were the issue, the majority's conclusion is contrary to Washington law and legislative history of the PLA.
The majority seems to find only two perceived policy grounds to justify its reversal. First, if recovery were allowed, "liability would potentially be endless". Majority, at 320. This merely echoes the unsupported supposition asserted by Justice Dore in Gain v. Carroll Mill Co., 114 Wn.2d 254, 260, 787 P.2d 553 (1990). My answer to this dire warning of "opening the floodgates of litigation" remains the same as expressed before: "I prefer to continue with a faith in trial courts and juries to dispense appropriate justice, rather than create an unjust artificial rule based on some unsupported fear." Gain, at 265 (Brachtenbach, J., concurring in result only; dissenting).
The second policy ground asserted by the majority is its statement: "We would not be furthering the intent of the Legislature if we extended liability so far that drug manufacturers would be chilled in marketing products and developing new ones." Majority, at 322. The opinion reveals no authority for this significant insight into the pharmaceutical industry. Not even the source of the majority's speculation is disclosed.
This speculative ground lends no support to the majority's conclusion. In stark contrast, the Oregon Supreme Court has rendered a reasoned and rational decision rejecting the foundation upon which the majority places such emphasis. The facts are remarkably similar, except the doctor sought only economic damages. In Oksenholt v. Lederle Labs., 294 Or. 213,
Oksenholt makes this telling and persuasive statement:
Oksenholt, at 220. When one evaluates the validity of the majority's supposition that recovery would "chill" drug manufacturers in marketing products and even in developing new ones, it must be remembered that this case did not involve the scientific complexities of some new drug. All this defendant had to do to escape liability was give the plaintiff and other doctors a fair warning of the literally lethal potential consequences of its widely used drug. Defendant knew those facts; its marketing strategy, the bottom dollar line, led to liability. Hiding the truth is what "chilled" its drug and left the plaintiff's child patient permanently brain damaged.
I turn to other reasons advanced by the majority. It correctly notes that there is no directly applicable Washington product liability case on the issue presented, whether the issue be who is a proper claimant or are these type of damages "harm" within the statute. However, the majority errs in asserting that in our prior product liability cases under the PLA, "the `harm' involved has been for injury caused directly by the product to the person or the property of the claimant." (Footnote omitted.) Majority, at 320. It cites Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 763, 818 P.2d 1337 (1991); Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 840 P.2d 860 (1992). The majority's statement is not accurate and the cited cases lend it no support, but
Next, the majority relies by analogy on Gain v. Carroll Mill Co., supra. It too provides no support for the majority. The sole holding in Gain is that the mental distress of family members who were not present when their son and brother were killed is not foreseeable as a matter of law. Gain, at 261. The holding in Gain is entirely irrelevant here; foreseeability is not an issue. We recently so held: "foreseeability is not an element of a failure to warn claim arising under subsection (b)" of RCW 7.72.030(1). Ayers, at 765.
I can discern no other rationale in the majority other than that discussed and rejected above. Because the majority repeatedly emphasizes what it perceives to be legislative intent in enacting the PLA, we should examine evidence of legislative intent.
First, we should consider the only theory raised by the defendant, the one never considered by the majority, i.e., that the plaintiff doctor lacked standing because he is not a "claimant" as defined by the PLA. To read the plain language of the statute answers the question. RCW 7.72.010(5) could hardly be stated more broadly: "Claimant. `Claimant' means a person or entity asserting a product liability claim ... `Claimant' includes any person or entity that suffers harm."
Up to this point in the statutory definition of claimant, there is nothing which suggests the limitation created by the majority. However, the Legislature went further and enlarged the scope of the definition by providing: "A claim may be asserted under this chapter even though the claimant did
The legislative history rejects the restrictive reading rendered by the majority. The report of the Senate select committee clearly illustrates the intent that the definition of "claimant" was intended to be broad and sweeping. That report states: "Claimant. Recovery may be had under this act by any person or entity which suffers harm, including those not in privity with the product seller, bystanders as well as product users." (Italics mine.) Senate Journal, 47th Legislature (1981), at 630.
It is critical to note what relationship with the product the claimant does not have to establish. The claimant need not have bought the product from the product seller. The claimant need have no privity with the product seller. By the Legislature's own declaration of intent, claimants may include bystanders with no connection to the product. Note that the Legislature declared that "claimant" includes all these potential plaintiffs, and not that it is restricted to those classes.
Within these very wide boundaries, is a physician who prescribes a drug without proper warning of its dangers (an established fact in this case) a claimant? We know from Ayers v. Johnson & Johnson Baby Prods. Co., supra, and Washburn v. Beatt Equip. Co., supra, that parents and spouses are claimants, even if not bystanders. Yet the Legislature went so far as to mention specifically bystanders. Nowhere is there a suggestion that there must be some familial relationship.
If mere bystanders are included, what relationship does the prescribing physician occupy? The duty to warn about the drug ran to the plaintiff doctor. The jury was so instructed in an instruction which defendant does not challenge. Instruction 17. The Oregon court in Oksenholt v. Lederle Labs., supra, clearly understood this:
Oksenholt, at 219-20.
The telling point is made entirely clear in Carmichael v. Reitz, 17 Cal.App.3d 958, 989, 95 Cal.Rptr. 381 (1971). The court, in considering the necessity of a warning from the drug manufacturer to the physician, stated: "Because of the foregoing law [relating to warnings to the physician], it is the prescribing doctor who in reality stands in the shoes of `the ordinary consumer.'" (Italics mine.) The court went on to hold it was proper to instruct that the drug had to be dangerous to an extent beyond that which could be contemplated by the physician. In this case, the jury was so instructed in this language: "you shall consider whether the product was unsafe to an extent beyond that which would be contemplated by an ordinary physician user." Instruction 17.
If we start with the definition of the statute that a "claimant" includes any person who suffers harm, and add the fact that the statute does not require the claimant to be in privity or even be a buyer, and then add the clear legislative history that "even bystanders" are included, what is there which would exclude the plaintiff-prescribing physician? We must eliminate any question of foreseeability. There is no requirement of any special relationship, such as a family member. The statute is perfectly clear that it includes all of the above categories, but does not limit the definition to those described.
Instead of a mere bystander, Dr. Klicpera was an essential participant in the distribution and ultimate sale of defendant's product. By law, without his participation, defendant could not have sold its product. I suggest the California court was exactly correct in stating "it is the prescribing doctor who in reality stands in the shoes of `the ordinary consumer.'" Carmichael, at 989.
Because the majority chose to create an entirely separate issue from that raised by defendant, it is necessary to answer that issue. The majority states the issue which it alone creates as follows: "We perceive the most precise inquiry here to be whether these pain and suffering damages are the type of `harm' contemplated as recoverable by the Legislature under the PLA." Majority, at 319.
The statute provides the definition of "harm" to be: "`Harm' includes any damages recognized by the courts of this state." RCW 7.72.010(6). It is absolutely clear that the Legislature was referring only to the type of damages recoverable, not to the person who was the claimant because the same statute contains a proviso that "the term `harm' does not include direct or consequential economic loss under Title 62A RCW."
The majority never denies that emotional distress with accompanying pain and suffering are types of damages recognized by the Washington courts. That is all the statute requires. Indeed, the majority cannot deny that recovery for mental distress has long been recognized as a proper element of damages in this state. Recovery was permitted for mental distress as early as 1918 in Redick v. Peterson, 99 Wn. 368, 169 P. 804 (1918). There has been a long debate in the cases about the necessity of physical harm as a condition of recovering for emotional distress, but that issue is not raised here and there were physical injuries. The physical impact requirement was abandoned 17 years ago, but our courts have not experienced the endless litigation and fraudulent claims then predicted, as the majority now predicts endless liability. Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976).
The majority correctly notes that the Legislature chose not to use the definition of "harm" contained in the Model Uniform Product Liability Act (UPLA), 44 Fed. Reg. 62,713, 62,717 (1979). However, the majority fails to explore the
44 Fed. Reg. 62,717 § 102(F) (1979).
Under said section 102(F)(3) of the UPLA, recovery here would be dependent upon physical injuries or illness. As discussed hereafter, the evidence may well support recovery under such definition, depending upon its interpretation, but it is not an issue raised by the defendant or the majority. Clearly, under subsection (F)(4), quoted above, Dr. Klicpera would be denied recovery because he was not placed in direct personal physical danger.
It is obvious that the UPLA proposed a much more restrictive definition of "harm". It is highly significant and relevant here that the definitions in RCW 7.72 "are taken substantially from the Uniform Product Liability Act". Senate Journal, 47th Legislature (1981), at 629. But when it came to defining "harm", the Legislature rejected the more restrictive definition in the UPLA. Intent to allow a much broader type of damage recovery is apparent. The select committee report states: "(6) Harm. The Select Committee has chosen not to utilize the definition of `harm' contained in the UPLA, and instead has adopted a broad definition allowing for the continued development of the concept through case law." (Italics mine.) Senate Journal, 47th Legislature (1981), at 630.
I suggest that this legislative declaration of intent destroys the majority's claim that its restrictive vision of legislative intent furthers legislative intent. The question is not what the majority wants to accomplish, but rather what the Legislature
In short, there is nothing in the majority opinion which convincingly demonstrates that the type of damages in the PLA verdict in this case does not constitute damages "recognized by the courts of this state". That is exactly what the majority has to show to justify its conclusion and result because that is the precise requirement of RCW 7.72.010(6).
The jury instruction given on damages is exactly the standard instruction one would expect under our existing law. It included the following as an element the jury could consider if it found for the plaintiff: "the pain and suffering, both physical and mental, experienced and reasonably certain to be experienced in the future." Instruction 29. While the majority holds, as a matter of law, a verdict pursuant to this instruction was error, not even the defendant claims it to be an erroneous statement of the type of damages recoverable under the statutory definition of "harm".
Because plaintiff has standing under the PLA and I believe the majority is incorrect in using an analysis of "harm" to reverse, it is necessary to consider two arguments which are raised by defendant.
First, defendant argues there was insufficient evidence of proximate cause. Defendant takes the improbable position that: "As a matter of law, a plaintiff's testimony that he would have acted differently if there had been a stronger warning is insufficient to establish proximate cause." Opening Brief of Appellant, at 44. On its face that contention is without merit and the cases cited do not support it, despite defendant's assertions as to what those cases hold. At best,
There is no question but that Dr. Klicpera testified that he would not have treated the child patient with the drug had he been properly warned of its dangers, and that, since learning of those dangers, he has stopped prescribing the drug. Verbatim Report of Proceedings, at 1968, 1081. This testimony alone was sufficient evidence of proximate cause to go to the jury and to support the verdict.
In support of the statement quoted above, defendant cites Baughn v. Honda Motor Co., 107 Wn.2d 127, 144, 727 P.2d 655 (1986), which does not hold what defendant represents. What Baughn did hold, correctly, is that whether warnings were adequate or not, failure to warn was not a cause in fact because the purchaser already knew of the dangers in the vehicle and had warned the injured child of the very danger for which they contended a warning was needed. Defendant's representation of the holding in Greiner v. Volkswagenwerk Aktiengesellschaft, 429 F.Supp. 495 (E.D. Pa. 1977) is equally misleading. Defendant states: "The court held that the plaintiff's bare allegation that she would not have bought the car if there had been a stronger warning was insufficient as a matter of law." Opening Brief of Appellant, at 45. In fact, the plaintiff was not the buyer of the automobile and did not testify that she would not have bought it if warned. The holding was that the jury could not speculate what she would have said had she been asked.
This dissent need not be extended by an examination of each case cited by defendant because none holds what defendant claims. Counsel responsible for writing this portion of the brief should consult RPC 3.3 — Candor Toward the Tribunal.
In Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 754-55, 818 P.2d 1337 (1991), we rejected a similar claim about speculation of the effect of a warning and proximate cause. We stated that to overturn a verdict on such basis: "This court must be prepared to conclude that no reasonable person could infer, as did the jury, that a warning would have altered the [plaintiffs'] behavior." Ayers, at 755.
Finally, defendant attacks the PLA verdict as (1) not supported by substantial evidence, or (2) such that it should shock the conscience of the court, or (3) the result of passion and prejudice. Defendant claims all three grounds exist.
As to the sufficiency of the evidence, defendant describes it as minimal. While the plaintiff was not verbose on the subject, he testified that he developed at least a gastritis or an ulcer for which he was being treated by a gastroenterologist. He described severe abdominal pain. He had never had those difficulties before. He positively related those problems to the stress arising from the litigation. He had loved his pediatric work because he liked taking care of kids. Now he does not enjoy it as much and considered going into administration.
The doctor testified to a changed relationship with his family. He described himself as hard to live with, spending less time with his children, and a lot less time with his wife. He summed it up as "We don't get along as well as I guess as we used to." His wife testified that he had become uncommunicative. He was on a prescribed medication for his stomach difficulties which caused him to awaken a lot at night. There was substantial evidence before the jury.
The majority has reviewed thoroughly and ably the standards which govern appellate review of the amount of a jury verdict. Majority, at 329-32. I need not repeat them, but they lead to the conclusion that we should not disturb the jury verdict.
Comment, however, is appropriate on defendant's claim that the amount should shock the conscience of the court. In its 2-page argument, defendant's only argument is a comparison of this verdict with other cases. As the majority notes: "In Washburn, we emphatically disallowed such comparisons...." (Footnote omitted.) Majority, at 331. Thus, we give no consideration to defendant's argument on this point.
However, I must note an egregious lack of candor in defendant's argument regarding passion and prejudice. The defendant states: "The trial court, in ruling on the JNOV/new trial motion, stated that the size of the jury's award did `startle' his conscience." Verbatim Report of Proceedings, at 4366. Because of the deference we give the trial court on this question and because a verdict is strengthened by denial of a new trial by the trial court, the above quotation could be highly significant. Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 271, 840 P.2d 860 (1992).
When one goes to the record and reads the entire statement of the trial court, it is obvious that the defendant's statement, quoted above, is at best misleading and more accurately a plain attempt to misrepresent the ruling and to mislead this court. This is what the trial court said: "I'm not able to say that the verdict shocked the conscience of the Court. I will say that it — I blinked and it did startle my conscience. But I can't really say that it shocked my conscience or it was a result of passion or prejudice." Verbatim Report of Proceedings, at 4366. In conclusion, I agree with the majority on every issue, and its disposition of those issues, except as to issue 2 on which I would affirm.
UTTER and JOHNSON, JJ., concur with BRACHTENBACH, J.
Reconsideration denied October 22, 1993.
Clerk's Papers, at 4209-10.