UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRYL ALEXANDER and EDNA

ALEXANDER,

Plaintiffs,

v.

DEL MONTE CORPORATION and THE

KROGER COMPANY,

Defendants.

 /

Case No. 09-12303

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on January 11, 2011.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Darryl Alexander and his wife, Edna Alexander, filed this action against Del Monte

Corporation (“Del Monte”) and The Kroger Company to recover damages for injuries Mr.

Alexander sustained while opening a jar of fruit. Presently before the Court is Plaintiffs’

Motion in Limine to preclude reference to Del Monte’s amended answers to Plaintiffs’

interrogatories. Also before the Court is Defendants’ Countermotion in Limine to

preclude reference to Del Monte’s original answers to Plaintiffs’ interrogatories. The

matter has been fully briefed by the parties, and the Court dispenses with oral argument

pursuant to Eastern District of Michigan Local Rule 7.1f(2). For the reasons stated below,

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the Court denies both Plaintiffs’ Motion and Defendants’ Countermotion.

I. Procedural Background

Plaintiffs’ Interrogatory No. 6 asked Del Monte to state the date and location of the

jar’s production. Del Monte answered in October 2009, stating:

The product was produced at Del Monte Plant #001 in Modesto, CA. 

Defendant Del Monte cannot determine the date of production because the

manufacturer’s code is no longer on the jar.

Pls.’ Mot. Ex. A. Plaintiffs’ Interrogatory No. 10 asked Del Monte to state the

recommended temperature range for the product’s storage prior to opening. Del Monte

answered this interrogatory: “Recommended temperature range is 34-40 degrees

Farenheit.” Id. Plaintiffs also submitted a second set of interrogatories to Del Monte, and

Interrogatory No. 1 asked Del Monte to state whether it produced Orchard Select Premium

Mixed Fruit with a “best by” date code of May 31, 2008. Del Monte answered:

No. “Mar 31 2008” was used as the “best by” date code for all Del Monte

Orchard Select Premium Mixed Fruit packed in September 2006, the only

month in 2006 when this product was packed.

Pls.’ Mot. Ex. C. Del Monte’s answers to the other interrogatories in that set referred to

this “Mar 31 2008” code. Id.

In December 2010, Del Monte amended its answers to Plaintiffs’ interrogatories. 

Its amended answer to No. 6 of the First Set of Interrogatories states: “The product was

produced at Del Monte Plant #001 in Modesto, CA in September of 2006.” Pls.’ Mot. Ex.

B. Its amended answer to No. 10 states:

The following is printed on the label: “BEST IF REFRIGERATED” and

“REFRIGERATE AFTER OPENING”. The following is printed on the lid:

“REFRIGERATE AFTER OPENING”.

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Id. Finally, Del Monte’s amended answer to Interrogatory No. 1 of the Second Set of

Interrogatories states:

No. “033108” was used as the “best by” date code for Del Monte Orchard

Select Premium Mixed Fruit packed in September of 2006, the only month

in 2006 when this product was packed.

Pls.’ Mot. Ex. D. Del Monte amended its answers to the other interrogatories in that set

to refer to this updated date code.

II. Discussion

Plaintiffs argue that the amended answers are based not on newly discovered

evidence, but rather on a desire to make the answers more favorable to Defendants. 

Plaintiffs note that the updated date code in Del Monte’s amended answer corresponds to

the numbering system used on Del Monte’s packaging materials. The updates to the

answers concerning the jar’s production date and recommended storage temperature

similarly support Defendants’ positions. Plaintiffs argue that the Court should preclude

any reference to the amended answers.

Answers to interrogatories may be offered as evidence at trial, as they constitute

admissions of a party-opponent. Gadaleta v. Nederlandsch-Amerekaansche Stoomvart,

291 F.2d 212, 213 (2d Cir. 1961); 7 Moore’s Federal Practice § 33.160 (Matthew Bender

3d ed.). “Normally, a party may not introduce his self-serving answers to an opponent’s

interrogatories.” Grace & Co. v. City of Los Angeles, 278 F.2d 771, 776 (9th Cir. 1960). 

But where a party introduces his opponent’s answer to an interrogatory into evidence, his

opponent may introduce any other answer tending to explain or correct it. Id. “[I]f the

original answer is offered into evidence by the plaintiff, the amended answer must be

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offered into evidence at the same time if defendant so requires.” Mangual v. Prudential

Lines, Inc., 53 F.R.D. 301, 303 (E.D. Pa. 1971). Thus, if Plaintiffs introduce Del Monte’s

original answers, Defendants will be permitted to introduce the amended answers at the

same time.

Accordingly,

IT IS ORDERED that Plaintiffs’ Motion in Limine to preclude reference to

Defendants’ amended answers to Plaintiffs’ interrogatories is DENIED;

IT IS FURTHER ORDERED that Defendants’ Countermotion in Limine to

preclude reference to Del Monte’s original answers to Plaintiffs’ interrogatories is

DENIED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Mark F. Miller, Esq.

Mary A. Kalmink, Esq.

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