666 P.2d 728 | Kan. | 1983
Petitioners filed this original action in mandamus seeking an order directing the Honorable Janette Howard, District Judge, to vacate certain orders issued June 8,1983, allowing discovery in an action pending in the District Court of Johnson County. In the underlying action Thomas D. McCarthy, surviving husband and heir at law and executor of the estate of Suzanne C. McCarthy, deceased, brought an action against petitioners and Shawnee Mission Medical Center for damages for the wrongful death of Suzanne C. McCarthy. Mrs. McCarthy allegedly died from toxic shock syndrome caused or contributed to by the use of Rely tampons, a catamenial device manufactured and marketed by petitioners.
In September, 1980, after an unusual number of toxic shock syndrome cases had been reported, petitioners withdrew their product, Rely tampons, from the market due to allegations in the media that there was a direct causal relationship between the use of Rely tampons and the occurrence of toxic shock syndrome. Following the withdrawal of the product from the market, petitioners undertook an extensive research program in an attempt to determine, inter alia, the cause of toxic shock syndrome and
The court has carefully considered the record presented in this case, together with the legal memoranda and arguments of the parties, and is of the opinion that the trial court has established adequate safeguards to protect all matters which are not legally subject to discovery. It has been generally recognized that mandamus will not lie unless “some inferior court, tribunal, board, or some corporation or person [fails] to perform a specified duty, which duty results from the office, trust or official station of the party to whom the order is directed, or from operation of law.” K.S.A. 60-801. The conduct of discovery proceedings lies within the sound discretion of the trial court and ordinarily the exercise of such discretion is not the proper subject of mandamus. Cropp v. Woleslagel, 207 Kan. 627, 485 P.2d 1271 (1971). The determination of what may be protected “work product” of an attorney is a matter for the trial court’s determination after in camera inspection of the questioned material.
The June 27, 1983, order of this court staying further discovery proceedings in the district court in the case of Thomas D.
The petition for a writ of mandamus is denied.