Luey v. Sterling Drug, Inc.

• Citation: 240 F. Supp. 632
• Decision Date: 27 April 1965
• Docket Number: Civ. A. No. 4784.
• Parties: Allen T. LUEY and Jean H. Luey, Plaintiffs, v. STERLING DRUG, INC., a corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

240 F. Supp. 632

Allen T. LUEY and Jean H. Luey, Plaintiffs, v. STERLING DRUG, INC., a corporation, Defendant.

Civ. A. No. 4784.

United States District Court W. D. Michigan, S. D.

April 27, 1965.

Stratton, Wise, Early, Starbuck & Lennon, Kalamazoo, Mich., Benjamin W. Wise, Kalamazoo, Mich., of counsel, for plaintiffs.

Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, Mich., W. P. Cooney, Detroit, Mich., Doyle, James & Dark, Kalamazoo, Mich., Austin J. Doyle, Kalamazoo, Mich., of counsel, for defendant.

FOX, District Judge.

This is an action for damages due to macular degeneration of plaintiff Jean Luey's eyes, allegedly caused by continued use of defendant's drug, Aralen, a brand of chloroquine phosphate.

Count I claims breach of warranty, both express and implied.

Count II alleges negligence by reason of inadequate testing of the drug by defendant, lack of due care in such testing, failure to warn of dangerous side effects, inadequate labeling, failure to maintain a continuing check on literature regarding the safety of said drug, and failure to have a proper new drug application or amended new drug application on file with the proper authorities.

Count III claims strict liability to plaintiff for placing a drug on the market without sufficient warning of its harmful side effects.

Plaintiffs propounded 103 interrogatories to defendant, of which plaintiffs claim 58 were unresponsive, incomplete, evasive, inaccurate, cryptic and generally unanswered. Defendant has moved to strike or otherwise modify some 41 of the interrogatories, all of which are included in the 58 to which plaintiffs seek to compel answers.

Plaintiffs have also submitted a motion to produce documents relating to the tests, records, reports and evaluations which are the subjects of many of the interrogatories.

After reviewing the respective briefs and hearing oral arguments, the court is satisfied that plaintiffs' contentions are substantially correct, and will order that the interrogatories be answered and the documents produced, in accordance with this opinion.

Plaintiffs class the unanswered interrogatories into eight categories:

1. Concerning development and testing of Aralen.

2. Concerning labeling.

3. Concerning promotion of and literature pertaining to Aralen.

4. Concerning others to whom harmful side effects resulted.

5. Concerning defendant's warnings to the profession.

6. Concerning new drug application and contacts with the Food and Drug Administration.

7. Concerning dosage determination and relationship to efficacy and side effects.

8. Concerning other important matters.

Defendant's objections fall into six categories:

1. That an impossible burden is placed on defendant in connection with securing written records or reports.

2. That answers requested would require an excessive and oppressive amount of research at great expense.

3. That the information sought is not relevant.

4. That the questions ask for a definition of terms.

5. That the questions ask for a legal opinion or a factual conclusion.

6. That the questions ask for confidential information involving the Food and Drug Administration.

Initially, it should be noted that at the hearing conducted on these motions, counsel for defendant conceded that defendant would draft a letter to the Food and Drug Administration granting plaintiffs access to its file on Aralen in the possession of the Administration. Counsel agreed that any such records which Food and Drug Administration will not release, will be produced by defendant.

The burden is on the party objecting to interrogatories to show that the information called for is in some way not the proper subject of interrogatories. Glick v. McKesson & Robbins, D.C., 10 F.R.D. 477.

The bulk of defendant's objections go to the burdensome and oppressive nature of the interrogatories, because of the allegedly voluminous amount of material which must be provided.

Case law on this point is fairly heavily weighted in favor of plaintiffs' position. The leading case is United States v. Nysco Laboratories, Inc., D.C., 26 F.R.D. 159, in which the Government served 73 interrogatories, comprising 32 pages and some 800 separate questions, to the defendant in an action concerning alleged misbranding of a drug.

"The first objection is that the interrogatories are burdensome, vexatious, and oppressive. If the interrogatories are relevant, the fact that they involve work, research and expense is not sufficient to render them objectionable. Baim & Blank, Inc. v. Philco Distributors, D.C.N.Y. 1957, 25 F.R.D. 86; United States v. E. I. du Pont de Nemours & Co., D. C.Ill.1952, 13 F.R.D. 98. This case is in essence a scientific controversy and the subject matter of the action is whether claims made by defendants with respect to the phenylpropanolamine hydrochloride are false and misleading. Much of the information requested is in the possession or knowledge of the defendants and must be compiled in their own preparation for trial. Some of the questions may not seem relevant to the issues but the test of relevancy is relevancy to the subject matter of the action and not to any specific issue framed by the pleadings. Sandee Mfg. Co. v. Rohm & Haas Co., D.C.Ill.1959, 24 F.R.D. 53. Viewed in this light, the interrogatories as a whole are not burdensome or oppressive." Id. at 161-162.

And, in Glick, supra, an interrogatory similar to some of those at issue here was presented:

"Interrogatory No. 5 seeks information as to any tests made by defendant of `Tartan,' `to determine whether it was so manufactured as not to be injurious to the skin of humans.' Defendant claims to make answer thereto would require `detailed and technical information and is therefore unduly burdensome.' The burden is on the party objecting to interrogatories to show that the information called for is `privileged, not relevant, or in some other way not the proper subject of an interrogatory.' Bowles v. Safeway Stores, Inc., D.C., 4 F.R.D. 469; Blanc v. Smith, D.C., 3 F.R.D. 182. We cannot from Interrogatory No. 5 ascertain any privilege, or burden to defendant, by the mere propounding thereof. If any `tests' as therein referred to were made, defendant would undoubtedly have a record or report of same. If so, the extent of any research it would be required to make would merely be to examine such record or report and respond to said interrogatory accordingly." Id. at 480.

Thus, while Rule 33, in conjunction with Rule 30(b) of the Federal Rules of Civil Procedure, provides that interrogatories may be limited when justice so requires to protect a party from expense, annoyance, embarrassment or oppression, the above cases indicate that the situation presented by these interrogatories has not been considered oppressive. Furthermore, in this case, as will be shown, defendant has failed to meet its burden of proving that the answering of such interrogatories would in fact be oppressive.

This is perhaps more evident by contrast to cases which have found interrogatories to be oppressive.

In Riss & Co. v. Ass'n of American Railroads, D.C., 23 F.R.D. 211, the court found interrogatories to be oppressive when answers thereto would have required searching and analyzing more than five million documents.

And in Tivoli Realty v. Paramount Pictures, D.C., 10 F.R.D. 201, it was held that interrogatories should not place the burden of many thousands of man hours of labor and the expense of many thousands of dollars on the interrogated party.

The facts of that case show that defendant filed an affidavit alleging that ten to fifteen thousand man hours of time, along with many thousands of dollars would have to be expended to properly answer the interrogatories.

However, the court did allow thirty days for the parties to attempt to settle the matter, after which it was proposed to appoint a master to determine just how great an expense would actually be involved.

Other cases support plaintiffs' contentions on certain other of the interrogatories objected to because of oppressiveness.

In United...