Henard v. Superior Court

Opinion

GARGANO, J.

Petitioner Laraine Y. Henard and her husband, James H. Henard instituted an action in the Superior Court of Kern County against real parties in interest (Kern County Superior Court No. 107748) for damages resulting from the injuries Mrs. Henard allegedly incurred from the ingestion of oral contraceptive tablets. The complaint, inter alia, alleged that the drug, known as “Norinyl,” was manufactured by real parties, that Mrs. Henard suffered.a side effect from the use of the drug consisting of a thrombo-embolic disorder, and specifically a cerebral thrombosis; that prior to the accident real parties had researched the possible side effects and complications caused by the use of their oral contraceptive on the female body; that they knew or should have known that the drug had a propensity to cause a thrombo-embolic phenomena in some users, resulting in the coagulation of the blood and in various serious side effects such as thrombophlebitis, pulmonary embolisms, cerebral thrombosis, and death; that notwithstanding this knowledge, real parties prepared and distributed information on the drug which failed to alert the attention of practicing physicians and the general public to the side effects that could possibly occur from its use.

After issue was joined on the complaint, real parties furnished petitioners with copies of the drug reaction reports they had received from doctors who had prescribed “Norinyl” for their patients; however, the doctors were identified by their initials only. Then, petitioners, through service of interrogatories, requested real parties to specify the name and address of each doctor who prepared a drug reaction report and who was identified in the report by his initials only. Real parties refused, and petitioners moved the court for an order requiring them to answer. The motion was denied, and this proceeding in madamus followed.

Real parties do not, nor can they, seriously assert that the identity of the doctors who prepared the drug reaction reports are not discover

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able. In the superior. court action petitioners seek punitive and compensatory damages, and it will be incumbent upon them to prove, not only, that the oral contraceptive Mrs. Henard ingested caused her injury but that it had the propensity to cause a thrombo-embolic phenomenon in some users and that real parties were aware of the propensity and failed to alert the members of the medical profession and the general public of the danger. To adequately prepare for trial, petitioners have the right to question the doctors in order to ascertain, among other things, whether (1) they had detected any patient symptoms not mentioned in the reports similar to those suffered by Mrs. Henard, (2) whether they furnished real parties with any pertinent information in addition to that set forth in their reports and (3) what, if any, warnings or cautionary instructions the doctors may have received from real parties on the use of the drug.