Bernard v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litig., 2012)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, February 23, 2012).

The estates of Shelley Bernard and Karen Tedrick sued Colgate-Palmolive over asbestos-related claims. Bernard had first been diagnosed with ovarian cancer and later with peritoneal mesothelioma. Colgate disputed the mesothelioma diagnosis. Colgate asked the court to issue open commissions so it could question two out-of-state non-party witnesses. The first was Dr. Jian-Jun Wei, a pathologist who allegedly prepared most of Bernard's pathology report. The second was Norma Cuffe, a Michigan resident who lived near a former Zonolite/W.R. Grace plant in Dearborn, which Colgate said was a possible alternate source of asbestos exposure for Tedrick. The plaintiffs opposed, arguing Colgate had already taken other pathologists' testimony and that Cuffe's testimony was irrelevant and sought too late. The court granted the motion. It found Dr. Wei's testimony material and unavailable elsewhere, and found Cuffe's information relevant to alternate causation. Both depositions had to be completed by March 30, 2012.

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
• Decided: February 23, 2012
• Citation: 2012 NY Slip Op 30426
• Docket: Nos. 107211-08, 190078/08
• Stage: Discovery or evidence ruling
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted defendant Colgate-Palmolive's motion for open commissions to depose out-of-state non-party witnesses Dr. Jian-Jun Wei and Norma Cuffe, over the plaintiffs' opposition, with depositions to be completed by March 30, 2012.

What the court held. Under CPLR 3101(a), full disclosure of material and necessary matter is allowed. Discovery from a non-party was permitted where the witness's information bore on a disputed diagnosis or on alternate causation and could not be obtained elsewhere.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Shelley Bernard: peritoneal mesothelioma; died

• Karen Tedrick; died

The defendants

• Colgate-Palmolive Company (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.

2012 NY Slip Op 30426(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION.

LAWRENCE BERNARD and MARILYN BERNARD as co-executors of the estate of SHELLEY

BERNARD, Plaintiffs,

v.

BROOKFIELD PROPERTIES CORPORATION, etal., Defendants.

LORI KONOPKA-SAUER and RICHARD KONOPKA, as executors of the estate of KAREN TEDRICK,

Plaintiffs,

v.

COLGATE-PALMOLIVE COMPANY, Defendant.

Nos. 107211-08, 190078/08

February 23, 2012.

Supreme Court, New York County.

Decision & Order

MARTIN SHULMAN, J.S.C.

Defendant Colgate-Palmolive Company ("defendant" or "Colgate") moves by order to show cause ("OSC") for an order directing the issuance of open commissions permitting 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 plaintiff Shelley Bernard's ("Ms. Bernard") diagnosis of peritoneal mesothelioma. Colgate disputes this diagnosis. Dr. Wei is a 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 "[p]apillary serous carcinoma favored over mesothelioma."[1] OSC at Exh. D. On September 26, 2011, 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 his 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 seeking open commissions for Ms. Bernard's pathologists. Norma Cuffe

Colgate seeks discovery from Norma Cuffe, a Michigan resident, 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. specifically, defendant alleges Ms. Cuffe has lived at the same address in Dearborn, Michigan since 1963 and that her home is less than one block from the former Zonolite/W.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 field across 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 field; 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. DISCUSSION

CPLR § 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action ..." 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 discretion to permit "further disclosure into a potentially dispositive Issue." 87 AD3d at 469. 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, 2011. Dr. Wei's testimony Is 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 dispositive issue" of Ms. Bernard's competing diagnoses from another source. In fact, Colgate contends in reply[3] that it attempted to obtain additional medical records regarding Dr. Wei's analysis and diagnosis but learned In December 2011 that no further medical records were available. For the foregoing reasons, 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 2011 and only obtained information from her in the following weeks. Colgate also contends that it will present evidence from other sources establishing that the emissions from the Zonolite/W.R. Grace plant in Dearborn, Michigan contained asbestos and that Ms. Tedrick lived close enough to the plant to have been exposed, thus establishing a possible link to Ms. Tedrick. Accordingly, the OSC is granted with respect to proposed witness Norma Cuffe, subject to the time restraints set forth below.

For all of the foregoing reasons, It Is hereby

ORDERED that Colgate's motion is granted; and it is further

ORDERED that Colgate shall complete Dr. Wei and Ms. Cuffe's depositions 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 Commissions to Subpoena Out of State Nonparty Witnesses, in the proposed form submitted by movant, have been sent to counsel for plaintiffs and Colgate.

[1] Ms. Bernard was initially diagnosed with ovarian cancer and subsequently was diagnosed with peritoneal mesothelioma. [2] See In re New York City Asbestos Litigation, 87 AD3d 467 (1st Dept 2011), 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.

[3] 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 otherwise seek to respond to this proposed submission and as such this court will consider it In determining the OSC.

Sources

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