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Bleacher v. Bristol-Myers Co.

Superior Court of Delaware, New Castle County

August 17, 1960

Mary L. BLEACHER and Ralph L. Bleacher, Plaintiffs,
v.
BRISTOL-MYERS COMPANY, a corporation of the State of Delaware, Defendant.

Page 527

Edmund N. Carpenter, II, of the firm of Richards, Layton & Finger, Wilmington, for plaintiffs.

William Prickett, Jr., of the firm of Prickett & Prickett, Wilmington, for defendant.

BRAMHALL, Justice, sitting by special appointment of the Chief Justice.

This case comes before this Court on plaintiff's motion (1) for the production of advertisements relating to the sale of [53 Del. 3] 'Ban', the name of a deodorant manufactured by defendant, together with the records of publications in which they appear; (2) for the production of copies of complaints made to defendant and investigation reports prepared on behalf of defendant in other injuries and (3) objection by defendant to plaintiffs' interrogatories requesting defendant to state in detail the formula of Ban, specifying the name and quantity of each ingredient used therein.

In July of 1958 plaintiff Mary L. Bleacher (hereafter plaintiff) purchased at retail a bottle of 'Ban', a deodorant manufactured by defendant. As a result of the use of said deodorant, plaintiff alleges that she contracted a severe case of dermatitis, causing her to be compelled to undergo drastic medical treatment, including extensive hospitalization and surgery. Plaintiff's action is brought on the alleged negligence of defendant and on breach of warranty.

1. Motion for production of advertisements.

Plaintiff's motion, which is made pursuant to Rule 34 of the Superior Court Del.C.Ann. (similar in all respects to Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A.), calls for the production of all advertisements of Ban together with the records of their publication subsequent to January 1, 1957. Plaintiff alleges in her complaint that prior to the purchase of Ban by plaintiff, defendant, by means of various advertisements directed to the public and particularly to ultimate consumers, including plaintiff, warranted that they could use Ban for the purpose intended and in the manner directed in complete safety to the person. Plaintiff alleges that, on the contrary, this product was unsafe and harmful in that it contained a dangerous ingredient or ingredients harmful to the skin. Defendant filed an interrogatory asking plaintiff to identify the advertisements referred to in her complaint. Plaintiff answered by saying that they were television advertisements viewed by plaintiff in the spring of 1958 and [53 Del. 4] a full page advertisement appearing in the Ladies Home Journal in the issue of May, 1958.

Defendant concedes that plaintiff is entitled to the production of those advertisements referred to by plaintiff in her answers to the interrogatories, but objects to plaintiff's request for the production of all advertisements subsequent to January 1, 1957. Defendant's reasoning is substantially this: First, plaintiff cannot recover on a special warranty unless she relies on that warranty; secondly, that a warranty to the public generally is not actionable. Defendant further denies that the advertisements are relevant. Defendant also avers that there is no good cause shown on the part of plaintiff, as required by Rule 34, for the production of the advertisements.

Plaintiff's right to the production of the advertisements is for the purpose of proving a breach of warranty. If these advertisements would not in some way aid the moving party in the preparation of his case or if the refusal to produce would not unduly prejudice the preparation of the

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party's case or cause her hardship or injustice, they would not be relevant.

Plaintiff admittedly is entitled to receive all advertisements and all pertinent information relating to this product which came to her attention prior to her injury. As to the other advertisements which in no way came to her attention prior to her injury, and of which she presumably had no knowledge, I fail to see how they are at all relevant to plaintiff's claim of breach of warranty. No information is furnished in plaintiff's motion or in the affidavit filed in her behalf pointing out such relevancy. The law is clear that in order for a defendant to be responsible for a breach of warranty, plaintiff must have known about the warranty and have relied upon it. Loper v. Lingo, 6 Boyce 170, 97 A. 585. See 1 Williston on Sales (Rev.Ed.), ยง 206. If plaintiff knew nothing about the alleged warranty in the advertisements at the time [53 Del. 5] she purchased the deodorant, she certainly could not have relied upon any warranty which may have been contained therein.

The motion for production of advertisements--other than those advertisements seen by plaintiff prior ...


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