Court: Supreme Court of the State of New York, Appellate Division, First Judicial Department
The Supreme Court of the State of New York, Appellate Division, First Judicial Department recently determined that a causation expert widely used by plaintiffs in talc litigation, Dr. Jacquline Moline, must identify the subjects of her talc causation studies.
Johnson & Johnson (J&J ) sought out-of-state subpoenas in the Supreme Court of New York, New York County (NYCAL), in connection with ongoing litigation in New Jersey. The subpoenas specifically requested that the court order plaintiff’s causation expert, Dr. Moline, to identify the subjects of two scholarly articles concerning the link between cosmetic talcum powder products and mesothelioma. The articles were authored by Dr. Moline and used subjects involved in other talc litigations. In response to the subpoenas, plaintiffs, joined by Dr. Moline, filed motions to quash the subpoenas, arguing that information concerning the subjects of the articles was protected information. The lower court agreed, and J&J’s motion was ultimately quashed in NYCAL.
According to the First Department, however, the information sought by J&J’s subpoenas was “clearly relevant” to the underlying New Jersey personal injury action because the information went directly to the credibility of the articles authored by Dr. Moline, a testifying expert, and spoke to the central issues in dispute and were relied upon by three testifying experts. Further, the information sought by the subpoenas was not protected from disclosure because the articles fell into the “exemption for secondary research based on publicly available identifiable private information or biospecimens” and were not subject to protective orders.
Lastly, the First Department noted that the production of the information sought by the subpoenas was not unduly burdensome and would not have a chilling effect on future medical research. Per the court, “[t]he subject information consist of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought process of the researchers.” Moreover, “the subjects never actually agreed to participate in any research, having released their information in connection with public litigation.’ Given the aforementioned, the court stated that it was “unclear how allowing disclosure of their identifies might deter future research.”
For these reasons, the First Department unanimously reversed the quash of J&J’s subpoenas and found that Dr. Moline must identify the subjects of her talc causation studies.
Read the full decision here.
