Olsonv.Brenntag N. Am., Inc.

New York Supreme Court, New York CountyFeb 28, 2019
190328/2017 (N.Y. Sup. Ct. 2019)
190328/20172019 N.Y. Slip Op. 50309



Donna Olson and Robert Olson, Plaintiffs, v. Brenntag North America, Inc., Brenntag Specialties, Inc., Individually, and F/K/A Mineral Pigment Solutions, Inc., as Successor-In-Interest to Whittaker, Clark & Daniels, Inc., Cyprus Amax Minerals Company, Individually and as Successor-In-Interest to American Talc Company, Metropolitan Talc Company, Inc.,Charles Mathieu, Inc., and Resource Processors, Inc., Imerys Talc America, Inc., Johnson & Johnson, Johnson & Johnson Consumer, Inc., Whittaker, Clark & Daniels, Inc., Individually and as Successor-In-Interest to American Talc Company, Metropolitan Talc Company, Inc., Charles Mathieu, Inc., and Resource Processors, Inc., Defendants.

Levy Konigsberg, LLP (Jerome Block, of counsel) for plaintiffs Patterson Belknap Webb & Tyler LLP (Thomas P. Kurland, of counsel) for defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.

Gerald Lebovits, J.

Levy Konigsberg, LLP (Jerome Block, of counsel) for plaintiffs

Patterson Belknap Webb & Tyler LLP (Thomas P. Kurland, of counsel) for defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.

The following e-filed documents, listed by NYSCEF document number 599, 601, 653, 654, 655, 660, 662, 663, 666, 667, 669 were read on this motion to/for ADMISSION OF EVIDENCE

In this asbestos-related action, currently partway through trial, the parties dispute the admissibility of various documents that plaintiffs wish to have admitted into evidence for the truth of the matter asserted.

In particular, as relevant here, plaintiffs seek to admit nine exhibits for their truth under exceptions to the hearsay rule. Plaintiffs seek to admit five exhibits (Plaintiffs' Trial Exhibits Nos. 11, 12, 24, 38, and 44) as business records under CPLR 4518 (a); and they seek admission of four exhibits (Nos. 17, 41, 53, and 54) under New York's common-law exception for "ancient documents." Plaintiffs also seek to admit Dr. Alice Blount deposition testimony for its truth under CPLR 3117 (3).

Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively, J & J) oppose the admission for truth of each of these exhibits, and the deposition of Dr. Blount, in their entirety.

Plaintiffs' requests for admission of Exhibit Nos. 12, 24, 41, and 44 are granted in their entirety. Plaintiffs' requests for admission of Exhibit No. 11 and No. 53 for their truth are denied in their entirety without prejudice. Plaintiffs' requests for admission of the remainder of these exhibits are granted in part, as set forth further below. Plaintiffs' request as to Dr. Blount's deposition is granted in part and denied in part, as set forth below.

I . Admissibility of Exhibits Nos. 12 , 24 , 38 , and 44

Plaintiffs seek admission of Exhibits 12, 24, 38, and 44 for their truth under the business-records exception to the hearsay rule.

Exhibit 12 is a copy of a scholarly article written by Dr. Blount regarding examination of talc for asbestos contamination, with a handwritten appendix. Exhibit 24 is a preliminary evaluation memorandum prepared by J & J employees in the 1960s regarding a lot of talc produced in a New Jersey mill. Exhibit 38 is a memo describing a meeting between the author and a researcher at Mt. Sinai School of Environmental Science regarding, among other things, possible asbestos contamination in Johnson's Baby Powder. Exhibit 44 is a faxed letter to J & J from a California television station describing tests of Johnson's Baby Powder for asbestos.

Plaintiffs' requests for admission of Exhibits 12, 24, and 44 are granted. The request for admission of Exhibit 38 is granted in part.

Plaintiffs' argument for the admissibility of these documents is based upon a a stipulation entered into by J & J in prior asbestos-related litigation. In 2017, a J & J executive was deposed for purposes of several asbestos lawsuits then pending against J & J and other defendants in state court in New Jersey and California. (See NYSCEF No. 653 at 2-3; see also generally NYSCEF No. 654 exh. A. ) During that deposition, counsel for J & J agreed that J & J would stipulate that certain documents used in the deposition "meet the business records exception for hearsay." (NYSCEF No. 654 exh. A, at 11.)

The deposition was taken approximately two months before commencement of the present action. (See NYSCEF No. 1, No. 654 exh. A, at 1.)

For reasons not in the record, the deposition itself appears to have been taken in London, England. (See NYSCEF No. 654 exh. A, at 1.)

It is undisputed that plaintiffs' Exhibits 12, 24, 38, and 44 were among the documents covered by the stipulation in that litigation. Plaintiffs now contend that J & J is bound by that stipulation in this action, such that the four exhibits are admissible for their truth as business records at trial. (See NYSCEF No. 653 at 3-4.)

J & J argues that it is not bound by the stipulation and opposes admission of these exhibits on two principal grounds: (i) the deposition at which the stipulation occurred did not comply with the applicable Case Management Order (CMO) governing all New York City Asbestos Litigation (NYCAL) such that no stipulation entered into at that deposition can apply here; and (ii) under New Jersey and California law, the business-records exception (putatively) has fewer requirements than in New York, such that J & J having stipulated to a document's admissibility for purposes of New Jersey or California law does not concede the document's admissibility in New York. See NYSCEF No. 660 at 1-3. Each of these arguments lacks merit.

A. The NYCAL CMO's Applicability to Depositions Taken in Other Jurisdictions

J & J argues that the 2017 deposition at issue was not taken on at least twenty days advance notice — and therefore that the deposition did not comply with the requirement of CMO § XI.A that "[a]ll depositions shall be taken in accordance with CPLR 3107." (NYSCEF No. 660 at 1-2.) Similarly, J & J asserts that since the 2017 deposition was taken for actions in multiple jurisdictions, the deposition did not comply with CMO § XI.G; that provision permits such multi-jurisdictional depositions only by leave of court or the NYCAL special master, which was not obtained here. (See id. at 2.)

The terms of Part XI of the CMO, however, make clear that it sets out rules governing the process for taking depositions in NYCAL actions. Nothing in §§ XI.A and XI.G in particular, or Part XI more broadly, indicates that these provisions govern asbestos-related depositions taken in litigation outside NYCAL. To the contrary, CMO § XI.E urges the parties to "make every effort to use depositions, as well as other discovery, obtained from defendants" in litigation from other jurisdictions — and makes no suggestion that parties may only use such discovery if it was obtained in conformity with the NYCAL CMO.

See e.g. § XI.A (providing that parties may seek resolution of objections to the form of deposition questions from the NYCAL Special Master, and requiring counsel to use their "best efforts to ensure that appropriate depositions are noticed to apply to all appropriate clusters" of cases within NYCAL); § XI.B (providing that with certain exceptions, depositions are to be taken in New York City), XI.C (making arrangements for scheduling of NYCAL depositions); XI.D (providing that a plaintiff's failure to respond to defendants' standard interrogatories shall result in the postponement of the deposition upon application to the NYCAL Special Master); XI.G (permitting the taking of multi-jurisdictional depositions by leave of the NYCAL Special Master).

In any event, J & J does not attempt to establish that they were somehow prejudiced by any failure by plaintiffs in the prior litigation to comply with the NYCAL CMO when noticing the 2017 deposition at issue. Nor does J & J explain why the transcript of the 2017 deposition — including J & J's business-records stipulation — should simply be disregarded by this Court in the absence of prejudice.

There is also no merit to J & J's argument that CMO § XI.A protects their right to raise objections now to the admissibility of the four exhibits at issue. Section XI.A permits a party to object to the admissibility of deposition testimony at trial even if that objection was not raised at the deposition itself. But that provision simply exempts J & J from having to preserve objections at a deposition. Plaintiffs' argument here is not that J & J failed to preserve its objection to admissibility of the four challenged exhibits, but that J & J affirmatively relinquished its objection at the deposition by stipulating that the four exhibits qualified as business records. Section XI.A does not govern that situation.

B. New Jersey and New York's Business-Records Exceptions

J & J claims that New Jersey's business-records exception is more permissive than that of New York, such that J & J's business-records stipulation in the 2017 deposition (taken in a New Jersey action among others) does not bind J & J here. In particular, J & J suggests that while New York's business-records exception makes a writing admissible only upon a finding that the writing "was made in the regular course of any business" and "that it was the regular course of such business to make it" (see CPLR 4518 [a]), New Jersey's business-records exception does not contain such a requirement. (See NYSCEF No. 660, at 3.) J & J is incorrect.

New Jersey Rule of Evidence 803, enacted in 1992, provides that a statement is not excluded by the hearsay rule when it is contained in a record that, among other things, "was made in the regular course of business," where it was also "the regular practice of that business to make it." (NJRE 803 (c) (6); see also State v Sweet, 195 NJ 357, 370 & n.8 [2008] [listing requirements of New Jersey's business-records exception].) This is the same requirement imposed by CPLR 4518 (a).

J & J is also incorrect to suggest (NYSCEF No. 660, at 3) that the federal business-records exception is more permissive than that of New York. (See FRE 803 (6) (B) - (C) [providing that a record is not excluded as hearsay if the "record was kept in the course of a regularly conducted activity" and "making the record was a regular practice of that activity"].)

Thus, by stipulating that the four exhibits at issue met the requirements of New Jersey's business-records exception, J & J necessarily conceded that the exhibits meet the requirements of New York's business-records exception as well.

J & J does not identify any other relevant and material difference between the two hearsay exceptions, and the court is aware of none.

J & J's only other argument for why the stipulation does not bind them here is that it was entered into by other counsel in a separate action. (NYSCEF No. 660, at 1.) But it is undisputed that counsel in the other action expressly entered into the stipulation on behalf of the same client—namely J & J. (See NYSCEF No. 654 exh. A, at 11.) Nor does J & J provide any other reason it might be appropriate to free it now from that stipulation.

C. Other Evidentiary Objections to These Exhibits

That these four exhibits qualify as business records for hearsay purposes does not, however, necessarily "require their acceptance into evidence." (De Dona v Dwyer, 35 AD2d 549, 549 [2d Dept 1970].) The exhibits remain subject to any other evidentiary objection that J & J may properly assert.

Exhibit 12. This exhibit is admitted in its entirety, subject to any further foundation or relevance challenge that J & J may raise regarding the handwritten appendix to Dr. Blount's article.

Exhibit 24: This exhibit is admitted in its entirety.

Exhibit 38: This exhibit is excluded to the extent that it contains hearsay-within-hearsay not subject to any other exception, and otherwise admitted.

Exhibit 44: This exhibit is admitted in its entirety.

II. Admissibility of Exhibit 11

Plaintiffs' Exhibit 11 consists of a 1991 scholarly article written by Dr. Alice Blount regarding possible asbestos contamination in talc, an appended list of samples that identifies one of the talc samples tested by Dr. Blount as having come from Vermont talc used in baby powder, and a letter written by Dr. Blount regarding the article to a researcher at a talc mining company.

Exhibit 11 was previously admitted for the limited purpose of showing that J & J and their codefendants had been placed on notice of the potential danger of asbestos contamination of talc. Plaintiffs now seek admission of Exhibit 11 for all purposes. (See NYSCEF No. 655.) Plaintiffs' request is denied.

Plaintiffs assert that they now believe that Exhibit 11 qualifies as a business record of J & J. But their basis for that assertion is that plaintiffs have become aware that a copy of the article, the appended sample-list, and the subsequent letter were found in J & J's corporate files. (NYSCEF No. 655, at 1.) That J & J had copies of these documents, standing alone, hardly establishes that the documents were was created in the regular course of J & J's business, let alone that it was the regular course of J & J to create those documents. (See CPLR 4518 [a].) And plaintiffs provide no other basis on which these documents could be considered business records for admissibility purposes.

Plaintiffs also contend in passing that excerpted deposition testimony from a J & J corporate representative given in 2018, in which he appears to confirm the authenticity of the letter contained in Exhibit 11, would be admissible for its truth under CPLR 3117. To the extent that plaintiffs are requesting that these deposition excerpts be admitted into evidence, that request is premature absent submission of the full deposition transcript to the court and is denied without prejudice.

III. Admissibility of Exhibits 17 , 41 , 53 , and 54

Plaintiffs seek admission for their truth of Exhibit Nos. 17, 41, 53, and 54 under New York's common-law hearsay exception for "ancient documents." (See NYSCEF Nos. 653, at 4-5, and 663 (Exhibits 17, 41, 54, 58); Trial Transcript (Tr.) at 1200-13 (Feb. 21, 2019) (Exhibit 53).)

Exhibit 17 is a due diligence report prepared by employees of Cyprus Industrial Minerals (a predecessor company to former defendant Imerys Talc America) regarding certain Vermont talc mines. Exhibit 41 is a report generated in the 1970s by researchers from the University of Minnesota which discusses the results of their testing of talc products (including J & J talc products at issue in the present action) for the presence of asbestos. Exhibit 53 is a database printout of air sampling conducted by the federal Mine Safety and Health Administration in the late 1970s and early 1980s at various talc mine and mill locations. Exhibit 54 is a report prepared by an employee of Cyprus Minerals describing MSHA monitoring of a Cyprus mill and the employee's conversations with MSHA staff regarding testing for asbestos.

Plaintiffs' request to admit Exhibit 41 is granted in its entirety. The requests to admit Exhibits 17 and 54 are granted in part. The request to admit Exhibit 53 is denied without prejudice.

A. The Scope of the Ancient-Documents Rule

Under New York's ancient-documents rule, "a record or document which is found to be more than thirty years of age and which is proven to have come from proper custody and is itself free from any indication of fraud or invalidity" is self-authenticating and may be admitted for its truth even if it is hearsay. (Tillman v Lincoln Warehouse Corp., 72 AD2d 40, 44-45 [1st Dept 1979].)

Here, it is undisputed that each document at issue is more than 30 years old and came from appropriate custody. J & J argues instead that the documents are outside the proper scope of the ancient-documents rule. (See NYSCEF Nos. 660, at 5-7, and 666.) This court disagrees.

J & J argues that the ancient-documents rule permits admission only of "routine" or "ministerial" documents that set out straightforward factual information or otherwise have indicia of trustworthiness (such as documents with legal effect like wills or contracts). (See NYSCEF No. 660, at 6; No. 666, at 2.) J & J is correct that many of the past New York decisions admitting ancient documents fit into one of the categories that they have described, and also that plaintiffs have not provided decisions admitting the type of scientific or evaluative materials at issue here.

J & J has not, however, identified any New York precedent that limits the scope of the ancient-document rule in the manner that J & J advocates for here. The rule as enunciated in Tillman does not contain such a limit. (See 72 AD2d at 44-45.)

Additionally, as other courts have noted, the "lengthy time period between preparation of the document and litigation" required for admission of a document under this rule itself "provides assurance that the work was not fabricated" or otherwise produced or manipulated "in anticipation of litigation." (Bowers v Fibreboard Corp., 66 Wash. App. 454, 462-463 [Wash Ct App 1992].) The more narrow reading of the ancient-document rule urged by J & J also fails to give due weight to simple necessity — that in many litigation contexts, "ancient" documents, of whatever type, will provide the only available evidence because the witnesses who could have provided testimony regarding the subjects of the documents are no longer alive or no longer recall the events at issue. (See 5 J. Wigmore, Evidence, § 1421 [Chadbourn rev. 1974] [discussing this justification for the ancient-document rule].) This is a particularly powerful consideration in the context of asbestos litigation, which frequently requires resort to decades-old pieces of information and documents.

Here, for example, the five "ancient document" exhibits at issue date from the early 1970s, 1977, 1982, 1984, and 1988.

Moreover, cases from a number of other state and federal jurisdictions have applied the ancient-document rule to permit admission of documents that are scientific, or evaluative, or otherwise beyond the narrow compass of the rule advocated for by J & J. Thus, for example, in George v Celotex Corp., the Second Circuit affirmed the admission for its truth of a 40-year-old report regarding safe exposure thresholds to asbestos dust—specifically rejecting defendant's argument that "the need to test the reliability of the report's conclusions makes it inadmissible as an ancient document." (914 F2d 26, 30 [2d Cir 1990]; see also e.g. Bowers, 66 Wash. App. at 461-464; Cole v Celotex Corp., 588 So 2d 376, 380-382 [La Ct App 1991], aff'd 599 So 2d 1058 [1992]; Rowan County Bd. of Educ. v United States Gypsum Co., 103 NC App 288, 294-297, 301-304 [NC Ct App 1991], aff'd, 332 NC 1 [1992]; (Kath v Burlington Northern RR Co., 441 NW2d 569, 575 [Minn Ct App 1989].)

J & J attempts to distinguish George on the ground that the Federal Rules of Evidence specifically permit the admissibility of ancient documents for their truth (see FRE 803 [16], 901 [b] [8]). (Tr. at 1199 [Feb. 21, 2019].) But the federal ancient-document rule set forth in these provisions is similar to the rule as enunciated in Tillman. --------

The court therefore concludes that Exhibits 17, 41, 53, and 54 are ancient documents not barred by the hearsay rule.

B. Other Evidentiary Objections to the "Ancient" Documents

That a document meets the requirements of the ancient-document rule does not, however, necessarily render all of its contents admissible. Admitting an ancient document for its truth is, in substance, the application of an exception to the hearsay rule. Thus, like other hearsay exceptions such as the business-records rule, the document remains subject to "any other exclusionary rule which might properly be invoked," such as hearsay-within-hearsay or lack of foundation. (See Toll v State, 32 AD2d 47, 50 [3d Dept 1969]; accord Fay v Vargas, 67 AD3d 568, 568 [1st Dept 2009]; Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 391, 396 [1st Dept 2003].)

Exhibit 17. The first full paragraph of page three of this exhibit (Bates 270) contains inadmissible hearsay-within-hearsay. The document is otherwise admitted for its truth.

Exhibit 41. Defendants do not assert any objection to the contents of this report (as opposed to admission of the report as a whole). The document is therefore admitted for its truth in its entirety.

Exhibit 53. The database printout in this exhibit lists contaminants found at locations monitored by MSHA, identified by numerical code. At some point after the document was printed out, a handwritten key to these numerical codes was added, indicating that one of the contaminants found was asbestos. Plaintiffs, relying upon this handwritten key, argue that this document is relevant and probative because it shows that asbestos was found in the air of a particular talc mill at the time that it was being used as a source of talc by Johnson & Johnson. (See Tr. 1200-02 [Feb. 21, 2019].)

The document does not, however, indicate when the handwritten code key (and other handwritten markings on the document) was added, who added it, nor what that person's basis of knowledge was of the relevant MSHA numerical codes. Nor have plaintiffs supplied testimony or other evidence regarding these questions. Absent any such supporting evidence that might shed light on the origins or accuracy of the handwritten key to the document's numerical codes, that key lacks the necessary foundation to be admissible. (See Matter of Barney's Will, 185 AD 782, 800-801 [1st Dept 1919]; see also People v Mingo, 12 NY2d 563, 575-576 [2009]; Rehbock v Levine, 111 AD2d 16, 16 [1st Dept 1985]; Brown v Murphy, 43 AD2d 524, 524-525 [1st Dept 1973]; accord Wilson v Bodian, 130 AD2d 221, 233 [2d Dept 1987]; Cramer v Benedictine Hosp., 190 Misc 2d 191, 193-194 [Sup Ct, Ulster County 2002].)

Plaintiffs argue that the exhibit has been offered in the form in which it came to them from the MSHA, and that there is no reason to think that the handwritten code key was fabricated. (Tr. at 1208-09 [Feb. 21, 2019].) The absence of fabrication, though, does not itself establish that the code key is accurate.

Moreover, on the present record, the relevance and probative value of this document appears to depend entirely on the handwritten key, because plaintiffs rely on the information in that key to connect talc used by J & J in a particular period to asbestos. (See Tr. at 1200-02 (Feb. 21, 2019).) Thus, because the key is inadmissible for lack of foundation, Exhibit 53 as a whole is inadmissible for lack of relevance.

Plaintiffs' request to admit Exhibit 53 is denied, without prejudice to submit further evidence that might provide a foundation for the handwritten key or which might establish the relevance of the document without the key.

Exhibit 54. This exhibit consists of three principal sections: (i) a description of the results of MSHA air sampling at a Cyprus Minerals talc mill in 1983 (Bates 119-121); (ii) a description of a visit by Cyprus Minerals employees to MSHA in 1984 (Bates 121-125); and a brief recommendations section (Bates 125). The first section is admitted, with the exception of the second full paragraph on Bates 120, which is inadmissible hearsay-within-hearsay. The second section is excluded to the extent that it contains hearsay-within-hearsay, and otherwise admitted. The third section is admitted.

Although J & J argues that this exhibit is not relevant because the Cyprus mill did not supply talc for Johnson's Baby Powder at the relevant times (see NYSCEF No. 660 at 6; see also Tr. at 975-976 [Feb. 19, 2019]), plaintiffs have represented that they will provide additional evidence connecting the talc from the mill discussed in this exhibit to the talc used in Johnson's Baby Powder (see Tr. at 976-978). J & J remains free to raise this argument to challenge the weight of the evidence based upon this exhibit.

IV. Dr. Blount's Deposition Testimony

Plaintiffs seek admission under CPLR 3117 of prior deposition testimony by Dr. Alice Blount regarding research that she had conducted into the possibility of asbestos contamination of talc. Defendants argue that the deposition as a whole should be precluded as expert testimony that was not timely disclosed under CPLR 3101 (d) (i), and, alternatively, that various statements in the deposition should be excluded as unreliable.

Defendants' argument that the deposition as a whole should be precluded under CPLR 3101 is without merit. Defendants' arguments to exclude particular portions of deposition testimony are dealt with below.

A. Admissibility of the Deposition as a Whole

Plaintiffs seek admission of Dr. Blount's deposition under CPLR 3117. (See NYSCEF No. 667.) That provision permits a party to introduce "the deposition of any person" at trial "for any purpose against any other party who was present or represented at the taking of the deposition," if the witness is located more than 100 miles from the place of trial or is out of state, unless the "absence of the witness was procured by the party offering the deposition." (CPLR 3117 [a] [3] [ii].)

Defendants do not dispute that Dr. Blount's deposition satisfies the requirements of CPLR 3117 (a) (3). Instead, they argue that the deposition is nonetheless inadmissible because it consists of expert opinion testimony that was not properly disclosed in advance by plaintiffs. (See NYSCEF No. 669.) CPLR 3101 (d) (1) (i) provides that "[u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial," and that the party "shall disclose in reasonable detail" the expert's qualifications, the subject matter of the expert's expected testimony, the "substance of the facts and the opinions" on which the expert is expected to testify, and a summary of the grounds for the expert's opinion. It is undisputed that plaintiffs did not provide such a disclosure regarding Dr. Blount's deposition testimony.

The parties contest whether Dr. Blount's deposition (which describes in detail her research methods and conclusions regarding asbestos and talc) constitutes "expert" opinion, or is simply lay opinion testimony — akin, for example, to a registered nurse's testifying that a particular substance is calamine lotion (see People v Caccese, 211 AD2d 976, 977 [3d Dept 1995]). This court need not resolve that question here, however: Even assuming that the testimony offered by Dr. Blount is the opinion of an expert rather than a lay witness, plaintiffs are correct that they were not required to provide a CPLR 3101(1)(d)(i) disclosure regarding that testimony.

CPLR 3101 (d) (1) (i) requires disclosure of a witness's opinions only where the witness "is an expert retained to give opinion testimony at trial." (Finger v Brande, 306 AD2d 104, 104 [1st Dept 2003], citing Overeem v Neuhoff, 254 AD2d 398, 400 [2d Dept 1998]; accord Rook v Key Centre, Inc., 239 AD2d 926, 927 [4th Dept 1997].) Where, on the other hand, expert testimony "is based upon their personal knowledge" of the occurrences at issue, rather than "information acquired from outside sources for the purpose of giving an opinion in anticipation of trial," that testimony need not be disclosed under CPLR 3101 (d) (1) (i). (Nesselbush v Lockport Energy Assoc., L.P., 169 Misc 2d 742, 744 [Sup Ct, Erie County 1996] [quotation marks omitted].) And this rule applies to matters such as medical causation that ordinarily lie within the province only of an expert rather than lay witness. (See Hamer v City of New York, 106 AD3d 504, 509 [1st Dept 2013].)

Here, it is common ground between the parties that Dr. Blount has not been — and does not want to be — retained by plaintiffs to provide testimony at the trial of this action. (Tr. at 1181, 1183, 1188 [Feb. 21, 2019].)_Instead, Dr. Blount was deposed in another action regarding tests that she had previously conducted for the presence of asbestos in talc and products made using talc, and articles that she had previously published on that subject. This testimony, bearing as it did only on matters that Dr. Blount herself had personally observed outside the context of litigation, need not have been disclosed by plaintiffs under CPLR 3101 (d) (1) (i).

To be sure, this rule is applied most frequently in the context of testimony given by the treating physician of a medical-malpractice plaintiff. (See e.g. Ryan v. City of New York, 269 AD2d 170, 170 [1st Dept 2000].) Yet the rule has not been not limited to treating-physician testimony. (See Coakley v Parkway Hospital, 103 AD3d 680, 681 [2d Dept 2013] [opinion of medical examiner]; Wylie v Consolidated Rail Corp., 229 AD2d 966, 966 [4th Dept 1996] [opinion of radiologist].)

Moreover, the rationale of the rule is that CPLR 3101 (d) (1) (i) disclosures are not required if a non-retained expert's opinion is based on records or reports that already have been fully disclosed, such that the other party "has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice." (Hamer, 106 AD3d at 509.) And in this case, Dr. Blount's deposition testimony concerns articles she had prepared decades ago; and Dr. Blount herself provided those articles — and her conclusion that Johnson & Johnson's Baby Powder contained asbestos — to counsel for Johnson & Johnson no later than 1998. (See NYSCEF No. 599, exh. 59.)

In any event, even if plaintiffs had been required to disclose Dr. Blount's deposition testimony under CPLR 3101 (d) (1) (i), their failure to do so does not warrant wholesale preclusion of Dr. Blount's deposition under the circumstances of this case: as discussed above, her testimony was limited to documents and information available to defendants well before the deposition (or indeed the present trial). (See Schwartz v Tab Operating Co., 239 AD2d 244, 244 [1st Dept 1997].)

B. Admissibility of Portions of the Deposition

That Dr. Blount's deposition as a whole is not precluded under CPLR 3101 (d) (1) (i), however, does not itself render all the contents of the deposition admissible.

Defendants argue that Dr. Blount's testimony regarding the presence of asbestos in Johnson & Johnson's Baby Powder lacks a necessary evidentiary foundation. This court agrees with defendants, but only in part.

In her deposition, Dr. Blount testified that she had found asbestos in Johnson & Johnson's Baby Powder in multiple tests conducted over a number of years on different samples of Baby Powder; she identified several images introduced at the deposition as photographs that she had taken of asbestiform fibers found in samples of Johnson & Johnson products. (See Dep. at 10:10-19, 17:16-22:20, 24:23-30:14, 42:3-9, 86:15-87:6, 99:1-5, 105:21-106:6.) These statements, made of Dr. Blount's own personal knowledge based on experiments she had conducted, are admissible here. To be sure, defendants remain free to raise arguments at trial critiquing Dr. Blount's basis for these statements; but that critique goes to the statements' weight and probative value, rather than admissibility.

Plaintiffs, however, also seek to admit testimony by Dr. Blount that — plaintiffs assert — shows that a particular research study by Dr. Blount (described in a 1991 article) found asbestos in a sample of talc from a mine used by Johnson & Johnson. This testimony lacks a sufficient foundation to establish its relevance here.

Dr. Blount's 1991 article discusses the testing of a number of samples of talc from different locations. One sample, Sample I, proved to contain asbestos fibers. Plaintiffs wish to introduce testimony from Dr. Blount's deposition to support the conclusion that "Sample I was J & J's Baby Powder." (See NYSCEF No. 601, at 25.) But there was considerable confusion at Dr. Blount's deposition over the identification of the samples she had used for the 1991 study (as opposed to samples used for other studies that she had conducted); and Dr. Blount never clearly stated that Sample I in the 1991 article was a sample of talc used by Johnson & Johnson Baby Powder. To the contrary, she said that Sample I from that study might well not be connected to Johnson & Johnson. (See Dep. at 101:2-14; see generally id. at 99:12-101:14.)

As a result, plaintiffs have failed to establish that Dr. Blount's deposition testimony regarding Sample I is relevant to the issues to be decided in this case. Plaintiffs therefore may not introduce into evidence any statements from Dr. Blount's deposition regarding Sample I or argue that Dr. Blount's deposition testimony shows that her 1991 study found asbestos in Johnson & Johnson talc. (Plaintiffs may seek to establish through other evidence that Sample I in the 1991 study was Johnson & Johnson talc; but not by means of Dr. Blount's deposition.)

Accordingly, it is

ORDERED that plaintiffs' request for admission for their truth of plaintiffs' trial exhibits Nos. 12, 24, 41, and 44 are granted in their entirety; and it is further

ORDERED that plaintiffs' requests for admission for their truth of plaintiffs' trial exhibits Nos. 11 and 53 are denied in their entirety without prejudice; and it is further

ORDERED that plaintiffs' requests for admission for their truth of plaintiffs' trial exhibits Nos. 17, 38, and 54 are granted to the extent indicated above; and it is further

ORDERED that plaintiffs' request for admission for its truth of the deposition testimony of Dr. Alice Blount is granted to the extent indicated above. Dated: February 28, 2019 Gerald Lebovits, J.S.C.