Diaz v. Combe Inc.

• Decision Date: 13 December 2019
• Docket Number: 201934215,Index 59242/2018
• Parties: PHILIP L. DIAZ, FRANK S. GIOVINCO, JOEL J. ISOM and TERRY A. WEAVER, Plaintiffs, v. COMBE INCORPORATED and COMBE PRODUCTS, INC., Defendants. Motion Seq. Nos. 5, 7
• Court: New York Supreme Court

PHILIP L. DIAZ, FRANK S. GIOVINCO, JOEL J. ISOM and TERRY A. WEAVER, Plaintiffs,
v.
COMBE INCORPORATED and COMBE PRODUCTS, INC., Defendants.

Motion Seq. Nos. 5, 7

No. 201934215

Index No. 59242/2018

Supreme Court, Westchester County

December 13, 2019

Unpublished Opinion

Motion Date: Dec. 9, 2019

Squitieri & Fearon, LLP. Attorneys for plaintiffs

Haworth Rossman & Gerstman, LLC. Attorneys for defendants

DECISION AND ORDER

JOAN B. LEFKOWITZ, JUDGE.

The following papers were read on this motion by defendants (Seq. No. 5) for an order pursuant to CPLR 2221 granting leave to reargue this Court's Decision and Order dated August 16, 2019^[1], and upon reargument, denying that portion of plaintiffs' motion brought by Order to Show Cause dated July 8, 2019 compelling the depositions of Keech Combe Shetty, Robert Lanni and Carrie Barsuhn; and granting such other and further relief as this Court deems just and proper:

Order to Show Cause; Affirmation in Support; Memorandum of Law in Support; A - N

Affidavit of Service

Memorandum of Law in Opposition; Affirmation in Opposition

The following papers were read on this motion by defendants (Seq. No. 7) for an order pursuant to CPLR 2221 & 3103, granting leave to renew defendants' argument in opposition to plaintiffs' motion to compel the depositions of additional Combe witnesses, which this Court granted on August 16, 2019; and granting a Protective Order striking plaintiffs' deposition notices for Keech Combe Shetty (Co-Chief Executive Officer), Roberto Lanni (Chief Information Officer) and Carrie Barsuhn (Senior Director of Consumer Resources); or alternatively, limiting the noticed depositions in time and scope; and granting such other and further relief as this Court deems just and proper:

Order to Show Cause; Affirmation in Support; Memorandum of Law in Support; Exhibits A - J; Affidavit of Service Memorandum of Law in Opposition

Upon the foregoing papers and the proceedings held on the record on December 9, 2019, the motions are determined as follows

Procedural History:

This action was commenced by the filing of a summons and complaint on June 12, 2018. Plaintiffs seek damages for claims sounding in the alleged negligent design, development, manufacturing, testing, packaging, promotion, marketing, distribution, labeling and sales of hair care products and hair dyes marketed as Just for Men®. Defendants filed an answer on July 30, 2018. Counsel for the parties have appeared multiple times for compliance conferences.

Contentions of the Parties:

In the first of two motions, defendants seek leave to reargue this Court's Decision and Order dated August 16, 2019, which granted that portion of plaintiffs' motion which sought to compel the depositions of three Combe employees, ie. Combe's Co-Chief Executive Officer, Keech Combe Shetty; Combe's Chief Information Officer, Robert Lanni; and Combe's Senior Director of Consumer Resources, Carrie Barsuhn. Defendants argue that Dr. Rao's deposition had not been completed at the time the underlying motion was made and therefore plaintiffs could not have properly evaluated the sufficiency of her testimony as a representative of defendants. Additionally, defendants argue that plaintiffs' claims that they needed the testimony of these three witnesses were speculative.

In opposition, plaintiffs argue that they explained in detail in their original motion papers why they seek the testimony of each of these three witnesses. Furthermore, plaintiffs again assert that each of the witnesses' testimony will be material and necessary to plaintiffs' claims and will not be cumulative. Additionally, plaintiffs argue that defendants do not dispute that the three witnesses have relevant information about plaintiffs' claims and submit that defendants merely submit the same arguments submitted in opposition to the original motion which the Court already reviewed and rejected.

In the second motion, defendants seek leave to renew their argument in opposition to plaintiffs motion to compel depositions of additional Combe witnesses, which motion this Court granted on August 16, 2019 and seek a protective order preventing the depositions of Combe witnesses Keech Combe Shetty, Roberto Lanni and Carrie Barsuhn, or in the alternative, limiting the scope of any such depositions that are allowed. Defendants submit that the motion to renew is based on the completion of the deposition of Dr. Pushpa Rao, the witness designated by defendants as the employee most knowledgeable about the matters which are relevant to the claims in this case. Dr. Rao's title is Senior Director of Global Product Safety and Regulatory. Defendants contend that after being deposed for four days by plaintiffs, this witness proved to be a witness knowledgeable about all the topics for which plaintiffs argued they needed the additional witnesses. Defendants now submit that, based upon the deposition transcript of Dr. Rao, plaintiffs can no longer carry their burden to compel defendants to produce additional witnesses under the facts and circumstances. Defendants request that the Court reconsider plaintiffs' motion to compel in light of Dr. Rao's testimony and her detailed knowledge over four days of testimony. Moreover, defendants argue that plaintiffs' demand for cumulative witnesses, some of whom are high-ranking corporate officers, is nothing more than a strategic tactic which is intended to embarrass, pressure and otherwise prejudice defendants. They further contend that the remaining witnesses...