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Young v. Key Pharmaceuticals Inc.11/25/1991
Petitioner E. Rosa Young, as guardian ad litem for her son Devan, seeks discretionary review of pretrial orders of the Superior Court denying a motion to use the testimony of Allyn Golub and Elliot Ellis from an earlier trial and a motion for issuance of letters rogatory to
facilitate the deposition of Golub in the state of Florida. Key Pharmaceuticals, Inc. (Key) has filed a response in opposition to the motion for discretionary review. A commissioner referred the motion to a panel of judges for consideration on the merits. We grant discretionary review solely with regard to the issue of whether the trial court erred in denying the motion to permit the use of Golub's testimony from an earlier trial, accelerate disposition of the matter pursuant to RAP 18.12, and reverse the decision of the trial court.
In February 1979, Devan Young suffered serious brain damage allegedly as a result of taking the theophylline preparation Theo-Dur. The drug theophylline is commonly used to treat asthma in children. Young thereafter commenced this product liability action against Key, the manufacturer of Theo-Dur, for failure to warn physicians and patients of the effects of high fevers and viral infections
upon the body's ability to metabolize theophylline, an essential component of Theo-Dur. The complaint alleged that Devan's mother and physicians kept giving him Theo-Dur despite the fact he had a fever and viral infection, and that Devan was brain damaged by seizures caused by toxic levels of the drug. The case was filed in King County Superior Court in 1986 and went up to the Supreme Court on other issues in 1989. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 770 P.2d 182 (1989). The case was subsequently remanded for trial against Key only and was preassigned to Judge Schapira in September of 1990.
In January 1991, Key's parent company was added as a party defendant, resulting in a continuance of undetermined but short duration. In April, Key's parent company filed an affidavit of prejudice against Judge Schapira, who had presided over a trial in which Key had been sued by another child who had suffered brain damage as a result of taking Theo-Dur (hereinafter referred to as the Hyde trial). This resulted in reassignment to another judge and another delay. Discovery cutoff was moved from June 17 to July 8.
Golub and Ellis had both testified at length for Key at the Hyde trial. The case was tried in February and March of 1991 in King County. Golub was Key's in-house expert on research and marketing from 1977 when Theo-Dur first came out, and Ellis was a consultant/expert physician who advised Key on the uses and risk in using the drug. Both witnesses testified regarding what Key knew about the drug and the role Key played in issuing warnings and labels. Before a verdict was entered in the Hyde trial, the parties negotiated a settlement.
Both Young and Key had initially listed Golub as a lay witness in the instant case. However, in April of 1991, after his testimony in the Hyde trial and return to Florida, Young was advised that Key did not intend to call Golub as a witness in the pending trial. After attempting without success to contact Golub, Young asked defense counsel to assist
in contacting him regarding being a witness or being deposed. On May 9, 1991, Young was advised that Golub, a Florida resident, refused to be deposed or to testify in the case. Young then moved for permission to use the testimony of Golub and Ellis from the Hyde trial. The trial court denied the motion on June 27, 1991.
Young subsequently moved to issue letters
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