Opinion
Index No. E174717/2021
04-21-2022
BENEDICT VIGLIETTA and TERRI VIGLIETTA, Plaintiffs, v. ASBESTOS CORPORATION, LIMITED, ET AL, Defendants.
Unpublished Opinion
PRESENT: Hon. Deborah A. Chimes, Presiding Justice
DECISION AND ORDER
Deborah A. Chimes Judge:
By way of Order to Show Cause (NYSEF 023) non-party Occidental seeks to quash a trial subpoena ad testificandum issued by defendant Hedman Resources Limited (Hedman). The subpoena seeks testimony from the non-party's representative regarding the history of the corporation, its general knowledge of asbestos and its dangers, caution statements placed on bags of Hedmanite, source companies of asbestos fibers and products, implementation of OSHA regulations in 1974 through 1976, insulation specifications, correspondence between Hooker Chemical (Occidental) and Hedman between 1973 and 1976, the company's efforts to eliminate use of asbestos during the 1970's including actions taken in connection with an October 24, 1975 outline, records of purchases of asbestos fiber from Johns-Manville between 1973 and 1976, the identity of vessels and/or kettles used between 1973 and 1976 at the North Tonawanda facility, and the identity of outside contractors who performed thermal insulation work at the facility. Occidental argues there is no current employee residing within or outside of New York that has the requisite knowledge; that it cannot be compelled to educate a current employee to respond to the subpoena or be compelled to produce a former employee and that the subpoena is overly broad.
Pfaudler, a settled defendant, also seeks to quash a trial subpoena ad testificandum issued by defendant Hedman (NYCEF 024). The subpoena seeks a representative from Pfaudler to testify regarding Pfaudler's historical knowledge of the hazards of asbestos, all warnings it gave to Hooker (Occidental) for kettles used at the North Tonawanda facility, the corporate history including the history of designing manufacturing and/or selling kettles requiring thermal insulation used at the North Tonawanda facility; the source companies of the asbestos fibers used in connection with the kettles at the facility, efforts of Pfaudler to implement OSHA regulations in its work place in 1974-1076, insulation specification for the kettles it manufactured and sold to the North Tonawanda facility and records of sales of kettles to Hooker (Occidental) prior to 1973. Pfaudler argues it does not have a representative with the requisite knowledge and therefore the subpoena is futile, that the trial subpoena is more akin to a discovery subpoena and that in settling its case with the plaintiff it cannot be compelled to testify at trial.
Hedman argues the information sought is relevant to its apportionment claim against Pfaudler and Occidental and the information from Occidental is relevant to plaintiff s culpable conduct in failing to read the warning Hedman provided. Therefore, Hedman argues the motions should be denied.
Pursuant to CPLR §1601, Hedman is entitled to place before the jury the conduct of a non-party to determine the equitable share of culpability of the non-party. Hedman is also entitled to place before the jury the culpable conduct of the plaintiff. (CPLR §3018)
Both movants argue the subject matters to be testified to are overly broad or not relevant. In reviewing the subpoena served on non-party Occidental, none of the topics, except possibly those pertaining to "caution statements" are relevant to the plaintiff s culpable conduct. The remaining topics are either irrelevant since the conduct of the plaintiffs employer is not an issue in the litigation or are akin to discovery which is an improper use of a trial subpoena. Regarding the one issue that arguably relates to the plaintiff s culpable conduct, Occidental, through its Attorney Affidavit states that after a diligent search there is no current employee residing within or outside of New York that has the requisite knowledge of the topics listed in the subpoena. Occidental's only obligation under the subpoena is to produce a person to testify who is knowledgeable of relevant material and is under its control or direction. (See generally, Standard Fruit & S.S. Co. v Waterfront Commission of New York Harbor, 43 N.Y.2d 11, [1977], Matter of Concerned Tenants of 823 Park Ave. v Salberg, 284 A.D.2d 276 [1st Dept. 2001]). In that no such person exists, Occidental's motion to quash is granted
As for the subpoena served on Pfaudler, the subject matter listed is not overly broad and is relevant to the issue of assessing the equitable shares of liability. Pfaudler has not established that the information sought is utterly irrelevant or the "futility of the process to uncover anything legitimate is inevitable or obvious". (See Anheuser-Busch Inc. v Abrams, 71 N.Y.2d 327, 331-332, [1988]). Pfaudler argues in its memorandum of law that it does not have a representative with the requisite knowledge and therefore the subpoena is futile. However, there is nothing within the moving papers that substantiates this claim.
Pfaudler, relying on New York City Asbestos Litig., No. 1028 WL 1335263 (N.Y. Sup.) 2018 N.Y. Slip Op. 30450(U) also argues it is a settled defendant and therefore cannot be compelled to produce a corporate representative to testify. The NYCAL decision relied on however is specific to the Case Management Order applicable in a different jurisdiction and it appears there was prior discovery involving the settling defendant. Though this Court is not opposed to the rationale used in the cited NYCAL decision given the encouragement under the Eighth Judicial Districts Case Management Order for the parties "to use depositions as well as other discovery obtained from defendants in other actions in New York State and other jurisdictions for all purposes ..." (See, Case Management Order, Eighth Judicial District § IX, [2000, amended 2003]) it is unclear whether prior testimony of a Pfauder representative relating to the issues enumerated in the subpoena exists. It is noted the subpoena at issue is one for testimony, not documents. Further, the Court is unaware of any statute or case law that holds a settling defendant cannot be subpoenaed to trial.
For the reasons stated above, Pfaudler's motion to quash is denied, though the Court strongly encourages the attorney for Eledman and Pfaudler prior to the jury selection of May 10, 2022, conference to determine whether there is a representative with requisite knowledge or an available transcript.
WHEREFORE IT IS HEREBY, ORDERED the motion to quash the subpoena served on Occidental is granted, and it is hereby further
ORDERED the motion to quash the subpoena served on Pfaudler is denied.