Farnum v. Bristol-Myers Co., BRISTOL-MYERS

• Court: Supreme Court of New Hampshire
• Writing for the Court: DUNCAN
• Citation: 219 A.2d 277,107 N.H. 165
• Parties: , 20 A.L.R.3d 1423 Blanche O. FARNUM v.COMPANY.
• Docket Number: BRISTOL-MYERS
• Decision Date: 29 April 1966

Page 277

219 A.2d 277 107 N.H. 165, 20 A.L.R.3d 1423 Blanche O. FARNUM
v.
BRISTOL-MYERS COMPANY. Supreme Court of New Hampshire. Argued Jan. 4, 1966.
Decided April 29, 1966.

[107 N.H. 166]

Page 278

Eugene S. Daniell, Jr., Franklin (by brief and orally), for plaintiff.

Hall, Zellers, Morse & Gallagher, Concord (Mayland H. Morse, Jr., Concord, orally), for defendant.

DUNCAN, Justice.

This transfer in advance of trial consolidates two reserved cases arising out of an action to recover damages for skin rashes or dermatitis suffered by the plaintiff, allegedly as a result of the use of a deodorant known as Ban, manufactured and marketed by the defendant, which she purchased in Tilton on April 17, 1957. One court of the writ alleges breach of warranty, and the other negligence in manufacture.

The plaintiff filed twenty-one interrogatories under Superior Court Rule 29. Certain of these were voluntarily answered by the defendant. As to the remainder, the Superior Court (Loughlin, J.) on May 7, 1964, and subject to exceptions by both parties, ruled that some should be answered and that others need not be. Superior Court Rule 37. Thereafter the defendant complied with the rulings of the Court by answers under date of June 3, 1964.

On November 27, 1964, the plaintiff filed a motion for disclosure of certain information by the defendant. The motion was heard by the Court (Leahy, C.J.) in conjunction with the pre-trial hearing and on January 12, 1965 was granted in part and denied in part, subject to the defendant's exception. The issues raised by this exception were reserved and transferred by the Presiding Justice on April 7, 1965; and the issues presented by the exceptions of both parties to the orders of May 7, 1964 were reserved and transferred by Loughlin, J. on May 18, 1965.

Page 279

Two major issues are presented by the briefs and arguments before us. The first relates to the scope of the order of January 12, 1965 with respect to disclosure of complaints received by the defendant from persons 'adversely affected by the use of defendant's product.' The second relates to refusal of the Count by the order of May 7, 1964 to require the defendant to furnish a 'complete chemical analysis' of its product 'as manufactured in January of 1957,' and to disclose its knowledge concerning the capability of the ingredients to cause harm to users.

[107 N.H. 167] The order of January 12, 1965 required the defendant to furnish the names and addresses of the 'originators' of complaints of having been 'adversely affected by the use of defendant's product 'Ban" (alleged by the plaintiff to have been over five hundred in number), the dates of such complaints, and the 'nature of (each) complaint, whether or not said complaint was in writing and if so the nature of the writing.'

The defendant maintains that this order was unduly broad, should be limited by reference to the dates of purchase, of use and of complaint, and further restricted to complaints which were similar in nature to those of the plaintiff herein.

In answer to the plaintiff's interrogatories, the defendant has disclosed that Ban has been manufactured by it since 1954, and distributed in New Hampshire since 1955. It has further disclosed that the chemical formula has been altered or changed five times since January 1957, on the following dates: November 3, 1958; January 16, 1959; January 29, 1959; August 29, 1960, and January 8, 1962. Its answers also disclose that prior to May of 1957 warning was given 'no more and no less than that any product may cause skin irritation to...