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 12, 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 (“Kroger”) 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 Kroger’s amended answers to

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

to preclude reference to Kroger’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,

2:09-cv-12303-PJD-PJK Doc # 90 Filed 01/12/11 Pg 1 of 3 Pg ID 1188
2

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

Plaintiffs’ Interrogatory No. 4 to Kroger stated:

Please state the reason the date “May 31, 2008" was printed on the price

sticker that was affixed to the jar of the subject Del Monte Orchard Select

Premium Mixed Fruit.

See Pls.’ Mot. Ex. A. Kroger answered the interrogatory on January 15, 2010, stating:

It is not Defendant Kroger’s regular practice to place a date on open dated

items such as the subject product and believes the referenced sticker was

placed on the subject product in error.

See id. On December 20, 2010, Kroger submitted Amended Answers to Plaintiffs’ First

Set of Interrogatories, updating its answer to the fourth interrogatory to read: “See

deposition testimony of Beatrice Imm.” See Pls.’ Mot. Ex. B.

Plaintiffs argue that Kroger’s amendment was untimely, in violation of Federal

Rule of Civil Procedure 26(e). Rule 26(e) provides:

A party who has made a disclosure under Rule 26(a) - or who has

responded to an interrogatory, request for production, or request for

admission - must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the

disclosure or response is incomplete or incorrect, and if the additional

or corrective information has not otherwise been made known to the

other parties during the discovery process or in writing; or

(B) as ordered by the court.

The Court notes that Imm’s deposition was taken during discovery, on February 18, 2010,

and Plaintiffs’ counsel was present. The information Kroger referred to in its Amended

Answer was therefore provided to Plaintiffs “during the discovery process.” 

Accordingly, Rule 26(e) did not require Kroger to supplement its answer.

2:09-cv-12303-PJD-PJK Doc # 90 Filed 01/12/11 Pg 2 of 3 Pg ID 1189
3

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

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, Plaintiffs may introduce Kroger’s

original answer into evidence, but if they do so, Kroger will be permitted to introduce

Imm’s testimony correcting that answer at the same time.

Accordingly,

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

Kroger’s amended answers to Plaintiffs’ interrogatories is DENIED;

IT IS FURTHER ORDERED that Defendants’ Countermotion in Limine to

preclude reference to Kroger’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.

Jack O. Kalmink, Esq.

2:09-cv-12303-PJD-PJK Doc # 90 Filed 01/12/11 Pg 3 of 3 Pg ID 1190