Jones v. Superior Court

• Decision Date: 28 May 1981
• Court: California Court of Appeals Court of Appeals
• Parties: Ruth Alice JONES, Petitioner, v. SUPERIOR COURT OF the State of California FOR the COUNTY OF ALAMEDA, Respondent, Judy K. BENNY and Eli Lilly and Company et al., Real Parties in Interest. Judy K. BENNY, Petitioner, v. SUPERIOR COURT OF the State of California FOR the COUNTY OF ALAMEDA, Respondent, ELI LILLY AND COMPANY, a Corporation et al., Real Parties in Interest. Civ. 49630, Civ. 50205.

Page 148

174 Cal.Rptr. 148

119 Cal.App.3d 534

Ruth Alice JONES, Petitioner, v. SUPERIOR COURT OF the State of California FOR the COUNTY OF ALAMEDA, Respondent, Judy K. BENNY and Eli Lilly and Company et al., Real Parties in Interest.

Judy K. BENNY, Petitioner, v. SUPERIOR COURT OF the State of California FOR the COUNTY OF ALAMEDA, Respondent, ELI LILLY AND COMPANY, a Corporation et al., Real Parties in Interest.

Civ. 49630, Civ. 50205.

Court of Appeal, First District, Division 1, California.

May 28, 1981.

LeRoy Hersh, Hersh & Hersh, San Francisco, for petitioner jones.

Wes Wayne Wagnon, Hersh & Hersh, San Francisco, for petitioner Benny.

Richard J. Heafey, Peter W. Davis, Judith R. Epstein, Crosby, Heafey, Roach & May, Oakland, for real party in interest Eli Lilly and Co.

Robert L. Dickson, Roy G. Weatherup, Ralph A. Campillo, Jerry M. Custis, Haight, Dickson, Brown & Bonesteel, Santa Monica, for real parties in interest E. R. Squibb and Sons, Inc., and The Upjohn Co.

GRODIN, Associate Justice.

These consolidated writ matters arise out of a confrontation between a litigant's right to discovery and the privacy rights of a person not party to that litigation. Plaintiff in the underlying suit is a woman who claims injury as a result of her mother's ingesting the drug diethylstilbestrol (DES) while plaintiff was in utero. Named as defendants are a number of pharmaceutical companies who are alleged to have manufactured and distributed the drug, and against whom plaintiff seeks recovery on various grounds including strict products liability, negligence, breach of express and implied warranties, and enterprise liability. (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924.) The issue in Jones v. Superior Court is whether or to what extent petitioner in that case, ¹ who is plaintiff's mother, can be compelled to reveal information concerning her medical history information which defendants say is relevant to the preparation of their defense, but which plaintiff's mother claims is protected both by the statutory physician-patient privilege (Evid.Code, § 990 et seq.) and by the federal and state Constitutions. The issue in Benny v. Superior Court is whether plaintiff can be compelled to seek information from her mother, concerning her mother's medical history, in order to respond to interrogatories propounded by defendants.

Procedural Background

The issue in Jones arose when one of the named defendants, Eli Lilly and Company (Lilly), took petitioner's deposition. She answered questions about her medical history before and up to the time of plaintiff's birth, recounting conversations with her physician, pharmacist, husband, and others regarding her pregnancy and the administration of DES, but she initially refused to give the names of the physicians, pharmacists, and the hospitals she had utilized during her pregnancy, and she refused to answer any questions relating to her medical history after the birth of plaintiff.

Lilly then moved to compel answers, and appended to its motion a copy of an affidavit from Ralph M. Richart, M. D., which had been filed in an apparently similar action against Lilly in New Jersey. Dr. Richart's affidavit, after stating his qualifications in the field of obstetrics, asserts that where a mother took DES, her "entire medical history," and especially her obstetrical and gynecological history, would be "extremely important in determining whether the (DES) she took had any effect on the plaintiff, and whether this pharmaceutical was properly prescribed." According to the affidavit it would be important for these purposes to know, in addition to facts relating to the mother's pregnancy with the plaintiff, whether the mother's history reflects any genetic defects which could cause obstetrical problems; all details surrounding her miscarriages and/or abortions; any symptoms presented during subsequent pregnancies and the pharmaceuticals which were prescribed for her.

Petitioner's counsel, in response to the motion to compel answers, represented to the court that petitioner would be willing to respond to questions about her medical history prior to plaintiff's birth, including the names of the doctors, pharmacists, and hospitals, but she continued to resist discovery directed toward the post-partum period on grounds of statutory privilege, constitutional right of privacy, and relevancy.

After hearing on the motion, the trial court ordered petitioner to respond to 14 certified questions, including 11 questions relating to the period prior to plaintiff's birth (which petitioner is apparently willing to answer) and three questions relating to the subsequent period. These latter three questions asked: "Who was your obstetrician for (plaintiff's younger brother) Steven?"; "Were all your children born in the same hospital?"; and "You lost one of your twins. Was that at birth?" In addition, respondent court ordered generally that petitioner "answer questions at her deposition regarding her medical history subsequent to the date of birth of plaintiff." These directives were accompanied by a protective order to the effect that the information disclosed was to be used solely for the purposes of the litigation, and was to be disclosed only to the parties, their counsel, and consultants and experts retained by them.

The issue in Benny arose when plaintiff responded to interrogatories dealing with her mother's medical history by saying she either did not know the requested information or knew only vague details. ² The trial court ordered further response, apparently on the ground that she was obligated to seek such information from her mother.

Plaintiff and her mother then filed with this court petitions for writ of prohibition or mandate to block enforcement of the respondent court's discovery orders. Considering that the issues raised were of general importance to the trial court and to the profession (see Henderson, DES Litigation: The Tidal Wave Approaching Shore (1980) 3 Corp.L.Rev. 143, 148), that useful guidelines might emerge, and that appeal was not an adequate remedy (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, 23 Cal.Rptr. 375, 373 P.2d 439; Roberts v. Superior Court (1973) 9 Cal.3d 330, 336, 107 Cal.Rptr. 309, 508 P.2d 309; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 928, 114 Cal.Rptr. 603, 523 P.2d 643), we granted alternative writs of prohibition and a stay of the discovery orders pending our decision. Defendants E. R. Squibb & Sons, Inc., and the Upjohn Company, who seek similar discovery, have, pursuant to stipulation, joined real party in interest Lilly in supporting the trial court's orders.

I. JONES v. SUPERIOR COURT

Jones' petition calls for consideration of both statutory and constitutional principles. We will discuss the applicability of those principles in general terms, and then bring them to focus upon the issues posed by the trial court's order.

Physician-Patient Privilege

Evidence Code section 994 provides, subject to statutory exceptions, that a "patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician." To the extent that the privilege applies, it operates as a bar to discovery of even relevant information. (Code of Civ. Proc., § 2016, subd. (b).) "(T)here can be no discovery of matter which is privileged." (Rudnick v. Superior Court, supra, 11 Cal.3d 924, 929, 114 Cal.Rptr. 603, 523 P.2d 643.)

Defendants assert what amounts to a threshold question concerning the statutory privilege. They rely upon three exceptions to the privilege any of which, if applicable, would mean that petitioner's privilege was automatically eliminated, or at least substantially diminished, by the action of her daughter in instituting this lawsuit and without regard to the nature of petitioner's participation in the litigation. The exceptions to which we refer provide that there is no privilege with respect to communications relevant to an issue concerning the condition of the patient "in a proceeding to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown" (Evid.Code, § 999), or where such issue "has been tendered" by either a "party claiming through or under the patient" (Evid.Code, § 996, subd. (b)), or a "party claiming as a beneficiary of the patient through a contract to which the patient is or was a party ..." (Evid.Code, § 996, subd. (c)). We consider each of these provisions in turn.

Prior to 1975, section 999 afforded an exception from the privilege in a proceeding to recover damages "on account of the conduct of the patient which constitutes a crime." The amendment of that year eliminated the emphasized phrase and substituted for it the present language relating to good cause for disclosure. The Law Revision Commission commentary to the amendment characterizes the former "criminal conduct" exception as "burdensome, difficult to administer, and ill designed to achieve the purpose of making needed evidence available." As an example of the section's new scope, the commentary refers to "a personal injury action brought against an employer based on the negligent conduct of his employee who was killed in the accident." Nothing in the legislative history of the amendment, or in its common sense meaning, suggests that it applies to conduct of a patient which is neither criminal nor wrongful in any legal sense, simply because that conduct in this case the consumption of prescribed drugs is alleged to constitute the physical medium by which the defendant's tortious act is communicated to the plaintiff. Plaintiff in this case sues, not "on account of the conduct of" her mother, but on account of the conduct of defendants, who are alleged to have acted wrongfully in relation to her. We conclude that the section 999 exception does not...