Lincoln v. Langley

• Decision Date: 01 July 1954
• Citation: 99 N.H. 158,106 A.2d 383
• Parties: LINCOLN et al. v. LANGLEY et al.
• Court: New Hampshire Supreme Court

Page 383

106 A.2d 383

99 N.H. 158

LINCOLN et al. v. LANGLEY et al.

Supreme Court of New Hampshire.

Argued June 1, 1954.

Decided July 1, 1954.

Charles W. Tobey, Jr., Concord, for plaintiffs.

Upton, Sanders & Upton, Concord (Richard F. Upton, Concord), for defendants.

GOODNOW, Justice.

Under the rule that when no findings appear which make an order improper, all special findings necessary to justify it were presumably made, LaMarre v. LaMarre, 84 N.H. 553, 147 A. 747, it is assumed that the order of the Trial Court was based on a finding that the defendants are unable properly to prepare their defense without an opportunity to examine and test both the medications and the parent cultures and that the production of them is demanded by the interests of justice. Ingram v. Boston & M. Railroad, 89 N.H. 277, 279, 197 A. 822. It seems to us that such findings could reasonably have been made by that Court upon the record before it, Kusky v. Laderbush, 97 N.H. 286, 287, 74 A.2d 546, 21 A.L.R.2d 536, and must be supported by us.

The technique of developing bacteriophages from parent cultures composed of germs has been known and utilized in the medical world for many years. The nature of the germs in the parent cultures from which the bacteriophages used by the plaintiffs in this case as medications were derived can only be determined from a laboratory examination and testing of the cultures themselves and not from the bacteriophages alone. It is claimed by the plaintiffs, however, that the order requiring production of the parent cultures is improper because the clinical utility of the bacteriophages used as medications is the material point in issue raised by the defendants and there is nothing in the record to indicate that an examination and testing of the parent cultures by the defendants will disclose anything concerning that issue. This argument disregards the testimony of Dr. Lincoln and the paper prepared by him in 1951 to be read at a medical society meeting.

From this evidence it appears that the germs in the parent culture are claimed by the plaintiffs to be individual strains of hemolytic staphylococci, selected and developed by Dr. Lincoln, which together with their specific virus partners, are considered by the plaintiffs to possess peculiar and specific qualities. They are said to be 'the most virulent and disease producing germs in existence'; 'the bases or parent sources from which all human diseases arise'; and the curative quality of the medications used by the plaintiffs is dependent upon the unusual character of these germs from which they are produced.

The right to discovery is 'necessarily preliminary, remedial and discretionary'. State v. Cote, 95 N.H. 108, 111, 58 A.2d 749, 751. It is not alone when the evidence is necessary to prove the defendants' case that the right...