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Court of Appeal, Fourth District, Division 3, California.

SMITH KLINE & FRENCH LABORATORIES, Petitioner, v. SUPERIOR COURT of Orange County, Respondent; Julie Ann GOULET et al., Real Parties in Interest.

No. G005365.

Decided: June 30, 1988

Gibson, Dunn & Crutcher, John J. Swenson and Mary Laura Davis, Los Angeles, for petitioner. No appearance for respondent. Terence J. Mix & Associates and Terence J. Mix, Redondo Beach, for real parties in interest.


Petitioner Smith Kline & French Laboratories, a pharmaceutical manufacturer, maintains it has a right to “explain” its answers to interrogatories which call only for “yes” or “no” responses.   However, the California authorities support a contrary determination, and the sister state decisions upon which petitioner relies are distinguishable.   Consequently, we deny relief.

According to the petition, plaintiff Loretta A. Goulet alleges she used petitioner's antihistamine drug “Ornade” to treat a cold while she was nursing her infant daughter, plaintiff Julie Ann Goulet.   Julie stopped breathing and sustained severe brain damage.   She is now a quadriplegic.   A major issue in the case is whether “Ornade” and its active ingredients can be transmitted in breast milk to a nursing infant.

Plaintiffs served Smith Kline with a third set of interrogatories on December 16, 1986.   Interrogatory 112 asked whether Smith Kline had “ever conducted any form of a test, experiment or study on humans to determine whether or not ‘Ornade’ ․ capsules, or any of its active ingredients, ․ can be transmitted in the maternal milk to a nursing infant when ingested by the mother?   If so please state:  ․”  Smith Kline responded:  “The ethics of clinical investigation and practical considerations of study design would preclude a pharmaceutical company from conducting such a test, experiment, or study.  [Citations.]  In light of the above enumerated considerations, to the best of [Smith Kline's] present knowledge, the answer is ‘No.’ ”

Interrogatory 113 is identical to 112 except that it inquires into experiments with animals rather than humans.   Smith Kline objected to this question on relevancy grounds:  “[T]he results of animal studies, especially with regard to the effects on nursing animals from mothers ingesting drugs, cannot be reliably extrapolated to human beings.”   Without waiving that objection, Smith Kline added this explanation:  “Such a test, experiment or study was not performed on animals for this purpose because of considerations such as:  (1) the potential inapplicability of the findings to the human situation due to species specificity;  (2) the inability to extrapolate dosage data reliably from animal to human;  (3) the inability to corroborate the data in humans;  (4) practical considerations of study design;  and (5) the likelihood that the animal findings could lead to unsubstantiated conclusions with regard to human drug safety.  [Citations.]”

Interrogatories 114 and 115, respectively, ask whether Smith Kline conducted any tests, experiments or studies on humans or animals to determine whether the drug “can have any form of a side effect, adverse reaction or any other physiological effect on a nursing [infant or offspring] when ingested by the mother?   If so please state:  ․”  Smith Kline's responses mirror those it provided for interrogatories 112 and 113.

Plaintiffs moved to compel further answers, contending they were entitled to receive simple “yes” or “no” responses to the interrogatories.   Smith Kline opposed the motion, arguing it had provided negative responses to the questions and that, although it could locate no California authority on the subject, parties have “always” been able to explain interrogatory answers.   The trial court granted plaintiffs' motion, and Smith Kline sought extraordinary relief from this court.   We denied its petition without comment.   The Supreme Court granted Smith Kline's petition for review and transferred the matter to this court with directions to issue an alternative writ.1  We have complied, and have allowed the parties to argue and further brief the issue.   We now deny relief on the merits.2

The version of Code of Civil Procedure section 2030, subdivision (a), operative at the time of the underlying discovery activities, stated interrogatories “shall be answered separately and fully.”   It also required that the answers “respond to the [written interrogatories]” and expressly authorized the propounding party to “move the court for a further response” if necessary.   The present version of the statute is even more specific:  “Each answer in the response shall be as complete and straightforward as the information reasonably available to the responding party permits.”   (Code Civ.Proc., § 2030, subd. (f).)  The propounding party may move for further response if the answers are “evasive or incomplete.”  (Code Civ.Proc., § 2030, subd. (l ).)

 The decisions are equally clear:  Interrogatory responses must be responsive to the questions asked.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783–784, 149 Cal.Rptr. 499.)   If they are not, the propounder may move for court assistance to enforce compliance with the statute.  (See Pantzalas v. Superior Court (1969) 272 Cal.App.2d 499, 503, 77 Cal.Rptr. 354.)  Code of Civil Procedure section 2030 is premised on an implied understanding it is the propounding party who controls the course of his or her own discovery.   The Legislature, by this enactment, has not granted the responding party permission to use the propounder's questions as a platform for introducing nonresponsive, self-serving testimony into the proceedings;  if that is the responding party's purpose, it must rely upon its own discovery devices or depend upon other means of producing evidence which the Legislature has sanctioned.  (See Estate of Horman (1968) 265 Cal.App.2d 796, 805, 71 Cal.Rptr. 780;  2 Witkin, Cal.Evidence (3d ed. 1986) Discovery and Production of Evidence, §§ 1422–1423, pp. 1401–1403.)

The California Supreme Court has addressed the problem in a related context.   “The testimony of a witness [at trial] is ordinarily elicited either by general questions seeking a narration of events or a series of specific questions calling for specific answers as to each fact.  [Citations.]  When counsel uses the latter method the witness should respond to the question.   He should not evade or volunteer matters not specifically asked for;  the nonresponsive answer may be stricken on motion of the questioner who is entitled to elicit testimony in his own way and to confine the scope of the examination as he sees fit.”  (In re Rosoto (1974) 10 Cal.3d 939, 949, 112 Cal.Rptr. 641, 519 P.2d 1065.   See also 3 Witkin, Cal.Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1830, pp. 1788–1789.)   Although Rosoto concerns the production of evidence at trial, a responding party is entitled to no greater latitude when answering interrogatories.3

Because discovery is largely a product of statute, and because our Legislature and the courts have spoken on the subject, we need not consider the decisions of other jurisdictions which may have addressed the question.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937;  Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 371, 15 Cal.Rptr. 90, 364 P.2d 266;  Coombes v. Getz (1933) 217 Cal. 320, 330, 18 P.2d 939;  Ahlborn v. Peters (1940) 37 Cal.App.2d 698, 705, 100 P.2d 542.)   However, we will briefly examine the two decisions upon which Smith Kline relies for the purpose of demonstrating the dissimilarity of their underlying discovery schemes.

Southern Ry. Co. v. Hayes (1913), 183 Ala. 465, 62 So. 874 was an appeal from a judgment for plaintiffs in a trespass action.   The trial court had determined portions of the defendant's interrogatory answers were not responsive to the questions and had refused to consider that information when it was offered as evidence.   The Alabama Supreme Court reversed.   It feared a contrary result would allow a propounding party to “ ‘extract from the [responding party's] action ․ and leave the [responding party] dumb to explain or avoid in [its] answers the favorable ․ fact or circumstances so elicited․  The serious consequence indicated is not avoided by the fact that the [responding party] may testify [at] the trial․’ ”  (Id., 62 So. at p. 877, quoting from Sullivan Timber Co. v. Louisville & N.R. Co. (Ala.1909) 50 So. 941, 944.)   However, its opinion also revealed a unique aspect of Alabama discovery:  Answers to interrogatories were considered pleadings as well as evidence, and there was apparently no alternative way a litigant could unilaterally preserve his or her own testimony for trial.   If the propounder of an interrogatory wished to use the answer at trial, he or she was bound to present the entire response the discovery had elicited.  (Id., at pp. 876–877.)   Here, Smith Kline will not in any way be limited at trial from presenting relevant evidence to explain why it did not test Ornade on humans or animals.

Petitioner also relies on Winneshiek County State Bank v. District Court (1927) 203 Iowa 1277, 212 N.W. 391.   There, the Iowa Supreme Court denied certiorari after determining certiorari was not the proper method to review interim orders requiring a party to answer interrogatories over its objections.   In dicta, the court observed an answering party “need not confine his answers to responding merely to the interrogatories, but may state any new matter concerning the action․”  (Id., 212 N.W. at p. 392.)   This was because controlling statutes had created “a rule of evidence together with a summary method by which one party [could] obtain the testimony of his adversary.”  (Ibid.)  So long as the answers “relate[d] to matters relevant and material to some issue in the case and [were] competent to be introduced as evidence upon the trial,” they could be “read as a deposition [at trial] by either party.”  (Ibid.)  California's discovery scheme is patently dissimilar so these decisions are inapposite.  (See Grolemund v. Cafferata (1941) 17 Cal.2d 679, 688, 111 P.2d 641;  Estate of Riccomi (1921) 185 Cal. 458, 463, 197 P. 97;  see also 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 778, pp. 748–749.)

Writ denied;  alternative writ discharged.   Real parties are entitled to recover their costs.


1.   The Supreme Court's direction to issue an alternative writ was merely a determination that we should examine the matter on its merits because Smith Kline has no adequate remedy at law.  (City of Oakland v. Superior Court (1983) 150 Cal.App.3d 267, 272, 197 Cal.Rptr. 729.)   It does not preclude us from denying peremptory relief.  (See Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 500, 165 Cal.Rptr. 748;  Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939, 152 Cal.Rptr. 870.)   We denied the initial writ application in part because Smith Kline had not yet sustained any harm, and in part because we presumed the trial court would control its own proceedings to prevent any possible unfairness to Smith Kline.  (See Ault v. Council of City of San Rafael (1941) 17 Cal.2d 415, 417, 110 P.2d 379;  8 Witkin, Cal.Procedure (3d ed. 1985) Extraordinary Writs, § 128, pp. 769–770.)   Finally, we knew we could correct any actual prejudice on appeal.  (See generally Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 101–102, 243 Cal.Rptr. 536, fn. 1.)

2.   Petitioners have twice removed the case to federal court.   The federal remand order was finally filed on April 15, 1988.

3.   We acknowledge the Legislature has authorized parties responding to requests for admissions to “qualify” their responses.  (See Code Civ.Proc., § 2034, subd. (f)(1)(A).)   However, it has not enacted a similar provision with respect to interrogatories, and we are not free to legislate one.

WALLIN, Acting Presiding Justice.