New York Court Permits Plaintiffs to Subpoena Financial Information From Potential Experts’ Employer
Eli Granek / 13.Jul, 2016
By: Eli Granek, Esq.
In a recent decision issued in a New York City Asbestos Litigation case, Judge Peter Moulton held that plaintiffs may subpoena financial information from employers of potential expert witnesses if the information sought could be used as evidence of bias. Because many of the same individuals testify as experts in asbestos litigation throughout the country, defense counsel should be prepared to quash attempts to issue similar subpoenas in other jurisdictions.
In LoGiudice et al. v. American Talc Co. et al.
, The Lanier Law Firm (“Lanier”), issued a subpoena to the University of Idaho for information relating to talc-related research, Dr. Mickey Gunter, and Dr. Matthew Sanchez. Both Dr. Gunter and Dr. Sanchez previously had testified on cosmetic-talc defendants’ behalf, but neither had been named as an expert witness in LoGiudice
The subpoena Lanier issued to the University sought records reflecting donations, gifts, payments, or other funding that the University received from entities involved in talc-related research and litigation. Lanier’s subpoena also sought payroll records and other documents relating to the work, funding, and research of Drs. Gunter and Sanchez. Arguing that the subpoena was overbroad, harassing, improperly issued, and sought material protected by the attorney-client privilege and work-product doctrine, the defendant asked the court to quash it.
Judge Moulton’s Ruling
In denying the defendant’s motion to quash, Judge Moulton held that, with limited exception, the information Lanier’s subpoena sought was relevant because it could extract evidence of Dr. Gunter and Dr. Sanchez’s motive and alleged bias. Judge Moulton also disagreed that the subpoena was premature despite no defendant having designated Dr. Gunter or Dr. Sanchez yet as its expert witness. Noting that New York’s intermediate appellate court has held that a discovery request in one asbestos action is not moot if the party about whom information is sought is party to other ongoing asbestos litigation, and that the defendant seeking to quash the motion was a party in other NYCAL cases, Judge Moulton ruled that the subpoena would be proper even if the defendant never designated Drs. Gunter and Sanchez as expert witnesses in the present case.
There are at least two takeaways from Judge Moulton’s decision. First, cosmetic-talc litigation is maturing to a point where, as asbestos litigation before it, plaintiffs are beginning to view defendants through a global, systemic lens. The connections between litigants, trade associations, research institutions, and expert witnesses—real or imagined—may begin receiving extra emphasis in plaintiff counsel’s opening statements and closing arguments. Defendants and their counsel may wish to explore developing new expert witnesses whom plaintiffs’ counsel will be less able to taint with the implication of conspiracy.
Second, as emphasized by each cosmetic-talc case that has been tried to verdict, expert testimony is the fulcrum on which these cases’ outcomes balance. Plaintiffs’ counsel appear to have noticed, and may continue searching for additional means with which to undermine defense experts.
Given the repeated use of the same experts and the critical role expert testimony plays in cosmetic-talc litigation, defense counsel must guard against plaintiffs’ counsels’ efforts to trawl for impeachment information. This is especially true in jurisdictions that take a relatively lenient approach to discovery.
Eli is an associate in Swartz Campbell’s Product Liability and General Liability groups. He is licensed to practice in New Jersey and Pennsylvania’s state and federal courts.
Swartz Campbell’s attorneys have experience counseling and defending material suppliers, product manufacturers, distributors, premises owners, and employers in cases involving asbestos and asbestos exposure. If you have any questions or would like to discuss this article further, feel free to contact the author or any of the attorneys in Swartz Campbell’s Environmental & Toxic Torts Department