Matter of New York City Asbestos Litig.
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Matter of New York City Asbestos Litig. 2012 NY Slip Op 30426(U) February 23, 2012 Supreme Court, New York County Docket Number: 107211-08 Judge: Martin Shulman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 212712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY n t I h /Y " 1 G U PRESENT: PART LJ - MOTION DATE - GL@@LDJF# MOTION SEO. NO. c The following papers, numbered 1 to were read on thls rnotlon tolfar Order to Show Cause - Affidavlte - Exhibits Answering Affidavlte Replylng Affidavits - Exhibits I8 I -7 3 0 Yes Upon the foregoing papers, It 4s ; & 6 (\rW) Cross-Motion: - MOTION CAI.. NO. 1 /- L d N o u&s4L d ;h S ordered that thls rnotlon ~uxicsh -9- C L & - FILED FEB 27 2012 NEW YOHK r0LJNTY CLERKS OFFICE FINAL DISPOSITION Check if appropriate: K N O N - F I&@%ISPOSITION DO NOT POST r] SUBMIT ORDER/ JUDG. .4LxuJ. Check one: [7 REFERENCE SETTLE ORDER/ JUDG. [* 2] BROOKFIELO PROPERTIES CORPORATION, et all order to show cause ( OSCI )for an order directing the Issuance of open commissions permltting defendant to seek testimony and/or documentation from non-party witnesses Dr. Jian-Jun Wei and Norma Cuffe, both out of state residents. Plaintiffs oppose the OSC,which is granted for the reasons set forth below. Dr, Wei Colgate seeks discovery from Dr. Wei, an Illinois resident, on the grounds that he has information relating to decedent plalntiff Shelley Bernard s ( Ms. Bernard ) s diagnosis of peritoneal mesothelioma. Colgate disputes this dlagnosis. Dr. Wei I e [* 3] pathologist formerly affiliated with New York University ( NYU ) who was allegedly responsible for preparing the majority of Ms. Bernard s pathology report containing her final diagnosis. That report contains the notation [pJapillaryserous carcinoma favored over mesotheiloma. OSC at Exh. D. On September 26, 201 I Colgate deposed Dr. , Jonathan Melamed, who the pathology report indicates made the final diagnosis. However, Dr. Melamed testified that he was only responsible for three lines in the report and that hls former colleague, Dr. Wei, was responsible for the remainder. In opposition, plaintiff argues that Colgate has already deposed four (4) of Ms. Bernard s pathologists and her treating oncologist on the issue of her diagnosis; Colgate deposed Dr.Melamed, a pathologist from the same hospital as Dr. Wei; and defendant has received the further disclosure the Appellate Division, First Department allowed regarding Ms. Bernard s diagnosis.2 Plaintiff further points out that Colgate knew Dr. Wei was involved in preparing the subject pathology report yet did not include him in its prior motion seaking open commissions for Ms.Bernard s pathologists. IiQmWAm Colgate seeks discovery from Norma Cuffe, a Michlgan realdent, on the grounds that she has information regarding a potential source of asbestos to which decedent plaintiff Karen Tedrick ( Ms. Tedrick ) may have been exposed during her lifetime. Ms. Bernard was initially diagnosed with ovarian cancer and subsequently was diagnosed with peritoneal mesothelioma. See In re New York City Asbestos Lltlgation, 87 AD3d 467 (lmt201 I), Dept wherein the First Department reversed the denial of defendant s motion for an open commission to depose the pathologists who diagnosed Ms. Bernard s ovarian cancer and peritoneal mesothelioma. -2- [* 4] Specifically, defendant alleges Ms. Cuffe has lived at the same address in Daarborn, Michigan since 1963 and that her home is l8SS than one block from the former 2onoliteNV.R. Grace plant which produced insulation materials. Colgate contends that Ms. Cuffe will testify that until the late 1960 s or early 1970 s, the plant regularly spewed a substance that would cover her home and a playing fleld acro8s the street. Ms. Cuffe s home is less than three miles from Ms.Tedrick s childhood home where she lived from approximately 1950 to 1966. In opposition, plaintiff argues Ms. Cuffe s testimony is irrelevant in that Colgate fails to and cannot offer evidence that: Ms. Cuffe knew Ms. Tedrick; Ms.Tedrick was ever near or on Ms. Cuffe s property or the adjacent playing fleld: or that the allegedly spewed substance ever reached Ms. Tedrick s house. Plaintiff further contends that Colgate has known of Ms. Cuffe for almost a year and could have sought discovery from her prior to the imminent close of discovery. DlSCUSSlQN CPLR ยง3101(a) provides that [tlhere shall be full disclosure of all matter material and necessary in the prosecutlon or defense of an action . . . I As previously stated, the Appellate Division, First Department permitted Colgate to obtain discovery from Ms. Bernard s pathologists. In re New York City Asbestos Litigation, supra. In making this determination, the First Department reasoned that the precise nature of Bernard s affliction appears central to the resolution of this dispute and exercised its discretlon to permit further disclosure into a potentially dispositive Issue. 87 AD3d at 469. -3- [* 5] With respect to Dr. Wei, although he is listed as a signatory on the pathology report at Issue, Colgate was unaware of the extent of his role in preparing it until it deposed Dr. Wei s former colleague on September 26, 201 1. Dr. Wei s testimony I s material and necessary to Colgate s defense of these actions and it has already been demonstrated that the pathology report s co-author had limited knowledge with respect thereto. As such, there is no indication that defendant can obtain the information it seeks on the potentially disposltlve issue of Ms. Bernard s competing dlagnoses from another source. in fact, Colgate contends in reply3that it attempted to obtain additional medical records regarding Dr. Wel s analysis and diagnosis but learned in December 201Ithat no further medical records were available. For the foregoing reaaons, Colgate s OSC is granted with respect to Dr. Wei, subject to the time restraints set forth below. Turning to Norma Cuffe, Colgate also demonstrates that this proposed witness possesses relevant information on the issue of alternate causation. Defendant disputes plaintiffs unsupported claim of undue delay, stating in reply that it first learned of Ms. Cuffe in October 201Iand only obtained information from her in the following weeks. Coigate also contends that it will present evidence from other 8ources establishing that the emissions from the 2onoliteNV.R. Grace plant in Dearborn, Michigan contained asbestos and that Ms. Tetdrick lived close enough to the plant to have been exposed, Colgate s counsel submitted a letter dated February 13, 2012 to this court requesting permission to respond to plaintiffs opposition and briefly addressing certain alleged misstatements therein. Plaintiffs did not object to or othetwise seek to respond to this proposed submission and as such this court will consider it in determining the osc. -4- . [* 6] thus establishing a possible link to Ms. Tedrick. Accordingly, the OSC i granted with s respect to proposed witness Norma Cuffe, subject to the time restraints set forth below. For all of t h e foregoing reasons, it is hereby ORDERED that Colgate's motlon I granted; and it is further s ORDERED that Colgate shall complete Dr. Wei and Ms. Cuffe's deposltlons on or before March 30, 2012. -- The foregoing is this court's decision and order. Copies of this decision and order and the simultaneously signed Order Directing Issuance of Open Commissions and Cornmissions to Subpoena Out of State Nonparty Witnesses, in the, proposed form submitted by movant, have been sent to counsel for plaintiffs and Colgate. Dated: New York, New York February 23,2012 Hon. Martin Shulman, J.S.C. -5-
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