Matter of Johnson & Johnson v. Northwell Health Inc. (2024)

Our plain-English summary of Matter of Johnson & Johnson v. Northwell Health Inc. (New York Supreme Court, Appellate Division, October 8, 2024).

Johnson & Johnson was defending a New Jersey personal injury case about cosmetic talcum powder and mesothelioma. It sought out-of-state subpoenas in New York for the identities of the subjects of two scholarly articles linking talc products to mesothelioma. Northwell Health and Dr. Jacqueline Moline, an author, resisted. Supreme Court, New York County, denied the petition to enforce the subpoena against Northwell and granted Dr. Moline's petition to quash. The Appellate Division, First Department, reversed both orders. It held the information was clearly relevant because it went to the credibility of articles that three testifying experts relied on, and whose author had been expected to testify until she withdrew. HIPAA's privacy rule did not apply because the providers had not given physician services for the articles and the subjects were never their patients. The federal Common Rule did not apply because of an exemption for secondary research on publicly available information. Those opposing disclosure had not shown a protective order covered the information. Production was not unduly burdensome and was unlikely to chill future research.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 1st Dept.
• Decided: October 8, 2024
• Citation: 231 A.D.3d 481
• Stage: Appeal from discovery or evidence ruling
• State: New York

Outcome. The Appellate Division reversed Supreme Court's orders, granting Johnson & Johnson's petition to enforce the out-of-state subpoena against Northwell Health, and denying Dr. Moline's petition to quash while granting the cross-petition to enforce.

What the court held. Subpoenaed identities of subjects of scholarly articles on talc and mesothelioma are relevant to the credibility of the articles and are not shielded by HIPAA or the Common Rule. The party opposing disclosure bears the burden of proving a protective order applies, and production was not unduly burdensome.

Issues decided: Expert Testimony, Trial Procedure and Discovery.

The defendants

• Johnson & Johnson (manufacturer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

231 A.D.3d 481 (2024)

220 N.Y.S.3d 262

2024 NY Slip Op 04909

In the Matter of Johnson & Johnson et al., Appellants,

v.

Northwell Health Inc., Respondent.

In the Matter of Jacqueline Moline, Respondent,

v.

Johnson & Johnson et al., Appellants.

Index Nos. 153527/24, 153220/24. Appeal No. 2739-2740. Case Nos. 2024-03951, 2024-03913.

Decided October 8, 2024.

Appellate Division of the Supreme Court of New York, First Department.

Appeal from the Supreme Court, New York County (Adam Silvera, J.), entered June 21, 2024.

Patterson Belknap Webb & Tyler LLP, New York (Thomas P. Kurland of counsel), for appellants.

Gordan Law, LLP, Katonah (Michael R. Gordon of counsel), for Northwell Health Inc., respondent.

Marino, Tortorella & Boyle, P.C., New York (Kevin H. Marino of counsel), for Dr. Jacqueline Moline, respondent. Concur—Webber, J.P., Gesmer, Rodriguez, Pitt-Burke, JJ.

Order, Supreme Court, New York County (Adam Silvera, J.), entered June 21, 2024, which denied the petition to enforce an out-of-state subpoena dated March 14, 2024, under index No. 153527/24, unanimously reversed, on the law, facts and in the exercise of discretion, without costs, and the petition granted. Order, same court and Justice, entered same date, which, under index No. 153220/24, insofar as appealed from as limited by the briefs, granted the petition to quash and denied the cross-petition to enforce an out-of-state subpoena dated March 14, 2024, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the petition denied and the cross-petition granted.

The information sought by the subpoenas—i.e., the identities of the subjects of two scholarly articles concerning the link between cosmetic talcum powder products and mesothelioma—is clearly relevant to the underlying New Jersey personal injury action. It goes directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an [*482] expert until she voluntarily withdrew (see Bell v American Intl. Indus., 627 F Supp 3d 520, 524-525, 529-532 [MD NC 2022]).

The information sought by the subpoenas is not protected from disclosure by HIPAA's privacy rule, which does not apply where, as here, the health care providers did not provide physician services in connection with the articles and the subjects were never their patients (see 45 CFR 160.103; Miller v Allstate Fire & Cas. Ins. Co., 2009 WL 700142, [*3]-4, 2009 US Dist LEXIS 21225, [*8] [WD Pa, Mar. 17, 2009, Civil No. 07-260]; Matter of Asbestos Prods. Liab. Litig., 256 FRD 151, 155 [ED Pa 2009]).

The information sought by the subpoenas is also not protected from disclosure by the federal Common Rule because the articles to which they relate fall within the exemption for secondary research based on publicly available identifiable private information or biospecimens (see 45 CFR 46.104[d][4][i]; 82 Fed Reg 7149, 7194 [2017]). The burden was on the party opposing the subpoenas to prove that this information was produced in the underlying litigations subject to a protective order (see Matter of Kapon v Koch, 23 NY3d 32, 39 [2014]). Neither party opposing disclosure of the information has offered any such proof.

Production of the information sought by the subpoenas would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research. The subject information consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers. Moreover, the subjects never

actually agreed to participate in any research, having released their information in connection with public litigation, and so it is unclear how allowing disclosure of their identities might deter future research participation (see Bell, 627 F Supp 3d at 536).

We have considered plaintiff's remaining arguments and find them unavailing.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites