Olson v Brntag N. Am., Inc. 219 NY Slip Op 334(U) January 7, 219 Supreme Court, Ne York County Docket Number: 19328/217 Judge: Manuel J. Mdez Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various Ne York State and local governmt sources, including the Ne York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.
[* FILED: 1] NEW YORK COUNTY CLERK 1/7/219 2:44 PM INDEX NO. 19328/217 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: MANUELJ.MENDEZ Justice IN RE: NEW YORK CITY ASBESTOS LITIGATION PART13 ~~- DONNA A. OLSON and ROBERT M. OLSON, INDEX NO. 19328/217 - against - Plaintiffs, BREN NT AG NORTH AMERICA, INC., et al., Defdants. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. 12/19/218 The folloing papers, numbered 1 tojl ere read on plaintiffs' motion to vacate the recommdation of the Special Master: PAPERS NUMBERED Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits... 1-4 Ansering Affidavits - Exhibits --------------------=5'"-_-'7 Replying Affidavits ------------------------=8'----=9'---- 3 - -z (.) <( _ I- :: (.!) ::::> z.., - 3: I- c...j...j :: :: LL. WW LL. :::c l o:: :: >-...J LL....J ::::> LL. 1- (J a.. :: <( (.) -z ;::: ::!:: Cross-Motion: D Yes X No Upon a reading of the foregoing cited papers, it is Ordered that plaintiffs' motion to vacate the November 6, 218 and November 9, 218 recommdations of Special Master Shelley Ols, is granted only to the extt of alloing plaintiffs to use at the time of trial the October 218 report of Dr. William Longo, that as provided to the defdants on November 2, 218. The remainder of the relief sought is died. Plaintiff, Donna A. Olson, as diagnosed ith pleural mesothelioma on or about May of 216. Her exposure to asbestos - as relevant to this motion - is allegedly from the use of Johnson & Johnson and Johnson & Johnson Consumer lnc.'s (hereinafter referred to jointly as "defdants") products, specifically, Johnson & Johnson Baby Poder ("JJBP") and Shoer to Shoer. Mrs. Olson alleges that she used the defdants' products daily from 1953 to 215. Plaintiffs' case as assigned to the April 218 In Extremis trial cluster and transferred to this Court as trial ready on June 26, 218 (NYSCEF Doc. No. 17). The Note of Issue stating that all discovery is complete in this action, as filed on October 2, 218 (Opp. Kurland Aff., Exh. C). On July 17, 218 plaintiffs' expert Dr. William Longo received t samples of JBP from the defdants' museum collection for testing, represting a period from about 1966 to 1985. The samples ere provided as part of a Court Ordered Stipulation in a Federal Multi-District Litigation pding in Ne Jersey, that is unrelated to this action (Mot. Block Aff., Exh. D). Plaintiffs claim that Dr. Longo completed testing on t samples on October 29, 218 and prepared a report of the testing results on October 29-31, 218 (Mot. Block Aff., Exh. E). On November 2, 218 plaintiffs served a copy of Dr. Longo's October 218 report on the defdants in another unrelated matter pding in Maryland (Mot. Block Aff., Exh. H). Defdants st an e-mail to Special Master Shelley Ols on November 6, 218 seeking a clear instruction as to plaintiffs' use of Dr. Longo's October 218 report at trial and expressing concern that he as about to release "a sle of ne testing results that have not be previously disclosed to J&J in any.jurisdiction" 1 1 of 4
[* FILED: 2] NEW YORK COUNTY CLERK 1/7/219 2:44 PM INDEX NO. 19328/217 (Mot. Block Aff. Exh. A). On November 6, 218 Special Master Ols issued a recommdation that "Plaintiff ill not introduce testing results on hich J&J had not be giv the opportunity to depose Dr. Longo during discovery of this c~se." She further determined that "Post-note of issue testing ill not come in (at trial) unless Dr. Longo as produced (post-note of issue) for deposition and as questioned on that post-note of issue testing prior to the case being transferred for trial" (Opp. Kurland Aff., Exh. K). On November 9, 218 plaintiff's e-mailed Special Master Ols to further clarify that the testing on the t samples by Dr. Longo in the October 218 report as highly probative and that defdants had delayed in providing the samples of JBP until a protracted discovery process that as part of the Federal MDL, and there had be discovery in the form of depositions of Dr. Longo concerning the October 218 report in other actions (Opp. Kurland Aft., Exh. F). By e-mail dated November 8, 218 plaintiffs sought to have Special Master Ols clarify and/or reconsider the November 6, 218 recommdation. Plaintiffs stated that it as unclear hich specific testing the defdants ere objecting to and expressed concerns that her earlier recommdation ould include precluding Dr. Longo's October 218 report. Plaintiffs claimed that although Dr. Longo had more rectly tested other JBP samples the significance of Dr. Longo's testing of defdants samples instead of those obtained from other sources that ere repeatedly challged, arranted excluding them from preclusion. Plaintiffs claimed they had sought the samples tested by Dr. Longo in the October 218 report, as early as April 4, 218 but did not obtain them until mid-july of 218. Plaintiffs also argued that there as no prejudice to the defdants because the t samples tested by Dr. Longo had alays be in the defdants possession and Dr. Longo had be deposed on the testing of these samples and the October 218 report in other actions (Opp. Kurland Aff., Exh. L). Special Master Ols issued her second recommdation on November 9, 218 confirming the prior recommdation (Opp. Kurland, Exh. F). She specifically recommded that plaintiffs "proceed to trial ithout these ne results, or ithdra their note of issue to reop discovery, Or appeal this ruling" (Opp. Kurland Aft, Exh. F). Plaintiffs' motion seeks to vacate Special Master Shelley Ols's November 6, 218 and November 9, 218 recommdations precluding the plaintiffs from using Dr. Longo's October 218 report at the time of trial. In Ne York City Asbestos Litigation ("NYCAL") the Court has "full authority under the controlling Case Managemt Order (CMO) to issue its discovery order." The CMO is recognized as a controlling factor for all cases and states that discovery is supervised by a Special Master. Special Master Ols is tasked ith suring that parties comply ith discovery, and as a result, recommds rulings on all discovery disputes (Ames v A.O. Smith Water Products, et al., 66 AD3d 6, 887 NYS2d 58 [1st Dept. 29]). Pursuant to CMO Section lll(c) the Special Master's recommdations are appealable to this court. By restricting Dr. Longo's trial testimony, Special Master Ols properly concluded that defdants are titled to an d date for discovery before trial. This restriction is permitted under the NYCAL CMO Section IX(O) "Post-Note Discovery" hich permits discovery after the note of issue pursuant to 22 NYCRR 22.21(d) and the directive of either the Special Master or the Court. 22 NYCRR 22.21(d) permits post note of issue discovery here there are "unusual or unanticipated circumstances," requiring the disclosure to prevt substantial prejudice to the party seeking discovery. The mere lack of diligce does not constitute "unusual or unanticipated circumstances." (See Arons v. Jutkoitz, 9 N.Y. 3d 393, 88 N.E. 2d 831, 85 N.Y.S. 2d 345 [27] and Audiovox Corporation v. Byamini, 265 A.O. 2d 135, 77 N.Y.S. 2d 137 [2"d Dept., 2]). 2 2 of 4
[* FILED: 3] NEW YORK COUNTY CLERK 1/7/219 2:44 PM INDEX NO. 19328/217 The delay in obtaining disclosure before the note of issue is filed is an "unusual or unanticipated circumstance" sufficit to arrant post-note of issue discovery under 22 NYCRR 22.21(d) to avoid prejudice (Bermel v. Dagostino, 5 A.D.3d 33, 855 N.Y.S. 2d 73 [1st Dept. 28] and Jones v. Seta, 143 A.O. 3d 482, 38 N.Y.S. 3d 422 [1st Dept. 216]). Special Master Ols correctly concluded that plaintiffs' expert reports prepared after the note of issue is filed and the case is deemed trial ready should gerally be excluded at trial to avoid any prejudice to the defdants. Therefore any reports subsequt to Dr. Longo's October 218 report are precluded. Plaintiffs have shon that the materials tested by Dr. Longo in the October 218 report ere not provided earlier and could not have be tested sooner because they ere only obtained through a Court Ordered Stipulation in the Federal Multi-District Litigation. The test samples used by Dr. Longo in his October 218 report ere the same samples used by defdants' experts and ould serve to refute claims that the other samples ere purchased through unsecure or unverified means and pottially tainted. The inability to use Dr. Longo's October 218 report ould prejudice the plaintiffs. CPLR 311(d)(1)(i) requires that a party idtify the expert itness being called and provide in reasonable detail the subject matter the expert is expected to testify about, the expert's qualifications, and a summary of the grounds for the expert's opinion. CPLR 311(d)(1)(i) does not have a specific time frame for the exchange of expert testimony and preclusion can be avoided by a shoing of "good cause" for the delay, that the noncompliance as not illful, and that the other party being served ith the report ould not be prejudiced (See McKinner's Consolidated Las of Ne York Annotated CPLR 311(d)(1)(i}, Public Adm'r o Bronx County v. 485-188th Street Realty Corp., 116 A.O. 3d 1, 981 N.Y.S. 2d 381 [1st Dept. 214] citing to Martin v. Triborough Bridge and Tunnel Authority, 73 A.O. 3d 481, 91 N.Y.S. 2d 193 [1st Dept. 21]). Plaintiffs have shon that in this instance their actions ere not illful and there is good cause for the delay since the materials tested by Dr. Longo ere alays in the defdants possession, not provided illingly as part of discovery, and could not have be tested sooner because they ere only obtained after a Court Ordered Stipulation in the Federal Multi-District Litigation. Plaintiffs did not delay and Dr. Longo's report as provided to the defdants ithin less than a eek after the testing as completed. Defdants have not shon that they ould be prejudiced by the late additional disclosure. Dr. Longo's report as exchanged approximately to months before the assigned trial date, and since that time defdants have had multiple opportunities to depose Dr. Longo and have deposed him about the report in other actions. The CMO "Section XI. Depostions" permits the parties to use depositions and other discovery obtained in other cases and jurisdictions. Plaintiffs have shon Dr. Longo as deposed by the defdants in other actions on November 5, 6, and 27, 218 and on December 4 and 5, 218 (Mot. Block Aff. Exhs. I and K and Reply Exhs. 1, 2 and 3). Dr. Longo's deposition testimony that included referces to the October 218 report as completed in an unrelated California action on December 5, 218 (See Reply Exh. 2). Plaintiffs have also shon that defdants' expert Dr. Matthe Sanchez has conducted testing of the same t samples as Dr. Longo, and prepared a "counter- report" dated November 12, 218 (Mot. Block Aff. Exh. F). On November 21, 218 Dr. Sanchez also testified at a deposition about Dr. Longo's test results in another unrelated action (Reply Exh. 4, pgs. 5-54). Defdants ill be able to use Dr. Longo's deposition testimony and their expert's report and testimony to refute Dr. Longo's findings at trial. Plaintiffs have shon that the defdants ill not be prejudiced by their use at the time of trial of Dr. Longo's October 218 report, avoiding the need to 3 3 of 4
[* FILED: 4] NEW YORK COUNTY CLERK 1/7/219 2:44 PM INDEX NO. 19328/217 NYSCEF DOC. NO. 32 ii RECEIVED NYSCEF: 1/7/219 Ii phclude his testimony at the iime of trial. 1 l ACCORDINGLY, it is ORDERED that plaintiffs' motion to vacate the Np;vember 6, 218 and November 9, 218 recommdations of Special Master Sh~lley Ols, is granted only :to the extt of alloing plaintiffs to use at trial the O~ctober 218 report of Dr. William Longo, that as provided to the defdants on November 2, 218 and it is further, J l ~ 11 ORDERED that Special Master Shelley Ols's November 6, 218 and No~ember 9, 218 recommdations are vacated only as to the use at trial of the October 218 report of Dr. William Longo that as provided to the defdants on Nbember 2, 218, and it is further, I I' / ORDERED, that the rem~inder of Special Master Shelley Ols's November 6, 218 and November 9, 218 recommdations are confirmed as to any reports priepared by Dr. William Longo~after October of 218, and it is further, \. ~ ORDERED that the rema.inder of the relief sought in this motion, is died. Ii II j Dated: January 7, 219! '!!I i ENTER: MANUEL J. MENDEZ 1 J.S.C. MANUEL J. MENDEZ Chleck one: D FINAL DISPOSITION X NON-FINAL DISPOSITION J.s.c. 1 l :J Check if appropriate: D DO NOT POST REFERENCE I I : :! 4 4 of 4