Hallahan v. Ashland Chemical Co.
| Decision Date | 06 March 1997 |
| Citation | 654 N.Y.S.2d 443,237 A.D.2d 697 |
| Parties | William HALLAHAN et al., Respondents, v. ASHLAND CHEMICAL COMPANY et al., Appellants, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Thorn & Gershon (Paul G. Hanson, of counsel), Albany, for Ashland Chemical Company and others, appellants.
Schneck, Weltman, Hashmall & Mischel (Joanne M. Gray, of counsel), New York City, for Sequa Corporation, appellant.
Carter, Conboy, Case, Blackmore, Napierski & Maloney (Joseph T. Johnson, of counsel), Albany, for Reynolds Metal Company, appellant.
Maynard, O'Connor, Smith, Catalinotto & D'Agostino (Christine K. Krackeler, of counsel), Albany, for respondents.
Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.
Appeal from an order of the Supreme Court (Keniry, J.), entered February 9, 1996 in Saratoga County, which, inter alia, granted plaintiffs' motion to quash a subpoena served upon Stewart Silvers by defendant Sequa Corporation.
Plaintiff William Hallahan (hereinafter plaintiff) was employed as a machine maintainer at a Ball Metal Container Group facility in the City of Saratoga Springs, Saratoga County, from 1981 through 1992. In 1992 plaintiff was diagnosed as suffering from granulocytic leukemia and, contending that the illness was caused by workplace exposure to chemicals, commenced this products liability action against a number of suppliers of chemicals and machinery used at the Ball facility. During the discovery phase of the action, defendant Ashland Chemical Company served a demand pursuant to CPLR 3101(d)(1) for the identity and expected testimony of plaintiffs' expert witnesses. Plaintiffs' response identified Stewart Silvers, a physician specializing in oncology and hematology who diagnosed plaintiff as suffering from chronic granulocytic leukemia (hereinafter CGL) and oversaw his treatment, including chemotherapy and bone marrow transplants, and Harold Zeliger, a chemist. According to plaintiffs' response, the witnesses' testimony was expected to include the opinion that plaintiff's leukemia was causally related to his exposure to chemicals at the Ball facility.
Thereafter, citing to the existence of "special circumstances" (CPLR 3101[d][1][iii] ), a number of the defendants sought to compel the oral deposition of Silvers and Zeliger. Plaintiffs resisted the effort, and Supreme Court ultimately concluded that defendants failed to demonstrate the existence of special circumstances to warrant an order directing that Silvers and Zeliger be deposed prior to trial. Defendants Ashland Chemical Company, The Glidden Company, PPG Industries Inc., SCM Corporation, BASF Corporation, Sequa Corporation and Reynolds Metal Company (hereinafter collectively referred to as defendants) appeal from the order entered thereon, and we affirm.
Defendants' claim of unique circumstances arises out of a chain of events commencing with Silvers' original opinion that plaintiff suffered from acute granulocytic leukemia (hereinafter AGL), a disease also suffered by another of Silvers' patients who was married to one of plaintiff's co-workers at Ball. Silvers' conclusion that plaintiff and the other patient constituted a leukemia cluster of patients with a common source of exposure supported his opinion that the disease may have been caused by occupational exposure to toxins. However, Silvers' diagnosis of plaintiff's condition soon changed from AGL to CGL. Under the circumstances, defendants assert, Silvers must be deposed in order to ascertain how, despite his change in diagnosis, his opinion of causation could remain the same. In addition, because of the absence of known medical opinion linking CGL with chemical exposure, defendants assert that they must...
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