v. Amchem Prods., Inc.

• Decision Date: 10 July 2014
• Docket Number: Index No. 190060/13,Mot. Seq. 001
• Citation: 2014 NY Slip Op 31801 (U)
• Parties: IN RE: NEW YORK CITY ASBESTOS LITIGATION PATRICK CARMODY and NORA CARMODY, Plaintiffs, v. AMCHEM PRODUCTS, INC., et al., Defendants.
• Court: New York Supreme Court

2014 NY Slip Op 31801(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATIONPATRICK CARMODY and NORA CARMODY, Plaintiffs, v. AMCHEM PRODUCTS, INC., et al., Defendants.

Index No. 190060/13

Mot. Seq. 001

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30

DATED: July 10, 2014

DECISION & ORDER

SHERRY KLEIN HEITLER, J.:

On the ground that plaintiffs Patrick and Nora Carmody have already provided defendant DAP, Inc. ("DAP") with their proof of claim ("POC") documentation, plaintiffs move pursuant to CPLR 2304 and 3103¹ to quash a March 12, 2014 subpoena duces tecum ("Subpoena")² served by DAP on non-party Manville Personal Injury Settlement Trust ("Manville Trust") which seeks discovery and inspection of documents filed by plaintiffs in support of their claim that Mr. Carmody was exposed to asbestos from Johns-Manville Corporation ("Johns-Manville") products.In the alternative plaintiffs request that the court conduct an in camera inspection of any subpoenaed documents to prevent the disclosure of privileged and/or confidential information. In opposition DAP contends that the Manville Trust is in possession of relevant documentation which plaintiffs have not already produced to it, and which would have been necessary for plaintiffs to have produced to the Manville Trust in order to receive a settlement offer therefrom. For the reasons set forth below, plaintiffs' motion to quash the Subpoena is granted only to the extent that the court will examine the subpoenaed documents in camera, and is otherwise denied.

The Manville Trust was approved by the Bankruptcy Court for the Southern District of New York in 1986 as part of the Johns-Manville reorganization plan.³ Trust Distribution Procedures ("TDP") were established inter alia to determine the qualifications claimants had to meet to obtain compensation. The POC form is the vehicle by which claimants seek such compensation.⁴ The POC's often provide specific factual details regarding a claimant's employment, exposure, and medical history.

In a prior order, this court confirmed the NYCAL Special Master's recommendation that all NYCAL plaintiffs must disclose POC-related documents to NYCAL defendants, including but not limited to affidavits (including those signed by plaintiffs, plaintiffs' family members, and nonparties), sworn statements, proofs of diagnosis, extraordinary claim certificates, and signature/certification pages. See Matter of New York City Asbestos Litig., 37 Misc 3d 1231(A); 2012 NY Misc. LEXIS 5646 (Sup. Ct. NY Co. Nov. 15, 2012, Heitler, J.)⁵. The POC Order alsodirected the redaction of any non-party affiant's personal information prior to any such production, but acknowledged the defendants' right to "avail themselves of the discovery provisions of the CPLR and CMO, by, for example, commissioning their own investigations." Id. at *27.

The Manville Trust's TDP requires that a claimant "demonstrate meaningful and credible exposure to asbestos or asbestos containing products supplied or manufactured by Manville" (2002 Manville TDP, January 2012 Revision, at E[2][c]⁶) before it remits a settlement. This meaningful and credible exposure "may be established by affidavit of the claimant, by an affidavit of a coworker or the affidavit of a family member in the case of a deceased claimant, by invoices, construction or similar records, or by other credible evidence." Id.

In this case, plaintiffs' submissions to DAP consist only of a pre-printed POC form,⁷ Mr. Carmody's diagnosing pathology, and an expert report which states that Mr. Carmody's occupational exposure to asbestos caused his mesothelioma. DAP asserts that "other supporting documents must have been submitted to the Manville Trust which were improperly withheld" during discovery.⁸ DAP alleges that such withholding is especially troublesome in light of Mr. Carmody's undisputed testimony⁹ that he did not recall working around products manufactured by Johns-Manville.¹⁰

DAP served the Manville Trust with the Subpoena on March 13, 2014 and made it returnable on April 1, 2014. Plaintiffs thereafter filed this motion to quash on March 27, 2014.Plaintiffs not only assert that they have fully complied with this court's POC Order, but also that "defendants should not be permitted to circumvent [the POC Order] by seeking unredacted documents directly from the trusts."¹¹

The New York Court of Appeals recently reiterated that a motion to quash a non-party subpoena "should be granted '[o]nly where the movant demonstrates the "futility of the process to uncover anything legitimate is inevitable or obvious' . . . or where the information sought is 'utterly irrelevant to any proper inquiry.'" Kapon v Koch, 23 NY3d 32, 2014 NY Slip Op 02327, at *4 (2014). "It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances . . . ." Id. In this regard, the Koch court has determined that CPLR 3101 (a)(4)'s¹² notice requirement is satisfied by utilizing the "material and necessary" standard as articulated by the Appellate Division, First and Fourth Departments.

Prior to Koch, New York's Appellate Divisions were split on this issue. The First and Fourth Departments adopted the "material and necessary" framework, i.e., the party seeking discovery only had to show that the requested discovery was relevant to the prosecution or defense of the action. The Second and Fourth Departments, however, required something more. In Kooper v Kooper, 74 AD3d 6, 16-17 (2d Dept 2010), a matrimonial action in which the wife subpoenaed the husband's financial documents from third parties, the court held it was not enough that the disclosure was material and necessary; the subpoenaing party also had to show, for example, that the information could not be obtained from other sources. Id. This heightened standard wasadopted by the Third Department in Matter of Troy Sand & Gravel v Town of Nassau, 80 AD3d 199 (3d Dept 2010).

In Koch, the Court of Appeals ultimately agreed with the First and Fourth Departments, and concluded that the material and necessary standard "is in keeping with this state's policy of liberal discovery. The words 'material and necessary' as used in section 3101 must be 'interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.'" Koch, supra, at *4 (citing Allen v Crowell- Collier Publ. Co., 21 NY2d 403, 406 [1968]). The Court further concluded that CPLR 3101(a)(4) "imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. So long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty." Id at *4.

Here, plaintiffs have failed to show that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." See Koch, supra. Notwithstanding, it is clear that plaintiffs' alleged submissions to the Manville Trust are relevant and should therefore be produced. As DAP points out, "POC disclosures enable all NYCAL defendants to learn whether the factual representations being made in a given action are consistent with, and as complete as, those representations being made to the bankruptcy trusts."¹³ These representations "may contain information concerning product identification, [a] claimant's work history and exposure to asbestos, causation and apportionment of fault." Drabczyk v Amchem Prods., Index No. 1583/2005 (Sup Ct. Erie Co. Jan. 18, 2008, Lane, J.).¹⁴

The court rejects plaintiffs' contention that DAP failed to comply with CPLR 3101(a)(4)'s notice requirement which obligates the subpoenaing party to state "the circumstances or reasons such disclosure is sought or required." As set forth in Koch, supra, "the subpoenaing party's notice obligation was never intended by the legislature to shift the burden of proof on a motion to quash from a nonparty to the subpoenaing party, but, rather, was meant to apprise a stranger to the litigation the 'circumstances or reasons' why the requested disclosure was sought or required." Id. at 4. The Subpoena at issue indicates that the "circumstances and reasons why the disclosure required by this Subpoena Duces Tecum is sought from you are that you possess material and necessary evidence and/or information pertaining to the material issues in the above-captioned action pending in the Supreme Court of the State of New York in New York County."¹⁵ In light of the fact that the Manville Trust's purpose is to administer the distribution of settlement monies to the victims of asbestos exposure nationwide, it would come as no surprise to this court if it received numerous disclosure requests of this nature each year. At the very least there can be no dispute that the Manville Trust's administrators are familiar with the issues that arise in asbestos personal injury actions. Accordingly I find that the Subpoena satisfies CPLR 3101(a)(4)'s notice requirement. Koch, supra.¹⁶

Plaintiffs' argument that "it is not the province of this court to authorize the issuance of a subpoena to the federally administered bankruptcy trust" is diluted by the clear language of the Manville Trust's TDP which provides that "other information and documents can be obtained basedupon . . . a subpoena that complies with procedural requirements in the...