Motion,Ex Parte: Dan Albasry as Trustee of the Estate of Newal Al Saad, Firas Mohammad v. Barretts Minerals Inc., Beacon Cmp Corp., Brenntag North America Inc. (Individually And As Successor To Minerals And Pigment Solutions Inc., Successor To Whittaker, Clark & Daniels Inc.);, Brenntag Specialties Llc (Individually And As Successor To Minerals And Pigment Solutions Inc., Successor To Whittaker, Clark & Daniels Inc.);, Charles B. Chrystal Company Inc.;, Colgate Palmolive Co.;, Glaxosmithkline Consumer Healthcare Holdings (Us) Llc (Individually, D/B/A And As Successor To Yardley Of London, Yardley Of London Ltd., Yardley Of London (U.S.) Llc, Smithkline Beecham Plc And Beecham Group Llc);, Glaxosmithkline Llc (Individually, D/B/A And As Successor To Yardley Of London, Yardley Of London Ltd., Yardley Of London (U.S.) Llc, Smithkline Beecham Plc And Beecham Group Llc);, Gsk Consumer Health Inc. (Individually, D/B/A And As Successor To Yardley Of London, Yardley Of London Ltd., Yardley Of London (U.S.) Llc, Smithkline Beecham Plc And Beecham Group Llc);, Lornamead Inc. (Individually And As Successor To Lornamead Acquisitions Ltd. And Lornamead Brands Inc., D/B/A Yardley Of London A/K/A Yardley);, Pfizer Inc., Port Jervis Laboratories Inc. (F/K/A Kolmar Laboratories Inc.);, The Procter & Gamble Co. (Individually, D/B/A, And As Successor To Yardley Of London Ltd., Yardley Of London A/K/A Yardley, Yardley Of London Inc., And Yardley Of London (U.S.) Llc));, Whittaker, Clark & Daniels Inc. (Individually, D/B/A, And Successor To Charles Mathieu Inc. (D/B/A Charles Mathieu & Co. And Chas. Mathieu Inc.), American Talc Company Inc., Metropolitan Talc Company Inc., Imperial Products Co. Inc., And Resource Processo, Yardley Of London Inc. (F/K/A Lentheric Inc. And Lentheric Distributors Inc.);, Yardley Of London Ltd.,, Conopco Inc. (Individually, Doing Business As, And As Successor To Elizabeth Arden Inc. And Evyan Perfumes Inc., Parfums International And Idea Fragrances Co.)

On January 05, 2023 a Motion,Ex Parte was filed involving a dispute between Dan Albasry As Trustee Of The Estate Of Newal Al Saad, Firas Mohammad, and Barretts Minerals Inc., Beacon Cmp Corp., Brenntag Specialties Llc, Charles B. Chrystal Company Inc.;, Colgate Palmolive Co.;, Conopco Inc., Glaxosmithkline Consumer Healthcare Holdings, Glaxosmithkline Llc, Gsk Consumer Health Inc., Lornamead Inc., Pfizer Inc., Port Jervis Laboratories Inc., The Procter & Gamble Co., Whittaker, Clark & Daniels Inc., Yardley Of London Inc., Yardley Of London Ltd.,, for Torts - Asbestos in the District Court of New York County.

Preview
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023

Exhibit B
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM
Superior Court - Suffolk
Docket Number 2384CV01301
4
COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 23-1301
__________________________________________ F
)
KOLMAR LABORATORIES, n/k/a PORT )
JERVIS LABORATORIES, et al. )
kg
Plaintiff, )
)
v. )
)
CRISTINA THOMAS, )
Defendant. )
_________________________________________ )

UNOPPOSED MOTION FOR CONTEMPT OF
COURT ORDER TO COMPEL PRODUCTION OF ALL
PATHOLOGY MATERIALS FROM BRIGHAM AND WOMEN’S HOSPITAL

NOW COME the Plaintiff’s, Kolmar Laboratories, n/k/a Port Jervis Laboratories

(hereinafter “Port Jervis”), in the above-captioned action, and hereby submit this Motion for

Contempt of Court Order to Compel Production of All Pathology Materials from Brigham and

Women’s Hospital. As grounds for the Motion, Port Jervis states the following:

1. On or about November 26, 2019, Cristina Thomas (“Ms. Thomas”), Defendant in

this Foreign Discovery Matter and Plaintiff in the underlying New York action captioned,

Cristina Thomas v. Avon Products, Inc. et al., Supreme Court of the State of New York, In Re:

New York City Asbestos Litigation, Index No. 190126/2020 (the “New York Action”), was

diagnosed with epithelial mesothelioma.

2. On or about June 4, 2020, Ms. Thomas initiated the New York Action based on

her exposure to asbestos-containing products designed, manufactured, supplied, marketed and/or

sold by the defendants in the New York Action.

1
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM
Superior Court - Suffolk
Docket Number 2384CV01301

3. Ms. Thomas underwent a surgical procedure in 2020 that resulted in portions of

pleura and tissue being removed. The procedure was performed at Brigham and Women’s

Hospital in Boston.

4. Port Jervis has requested pathology materials from Brigham and Women’s

Hospital via a HIPAA authorization so that it can perform a fiber digestion study on them and

determine if Ms. Thomas’ mesothelioma is related to an asbestos exposure, and if so if it can be

related to the type of asbestos-containing materials which could have been used in its product.

5. Brigham and Women’s Hospital refused access to the material despite the

HIPAA-compliant authorization.

6. Port Jervis filed a Motion for Open Commission with the Supreme Court of the

State of New York on or about February 22, 2023. The Motion for Open Commission is

attached hereto as Exhibit 1.1

7. The Honorable Adam Silvera allowed the Order Directing Open Commission,

which is attached hereto as Exhibit 2.

8. On or about June 6, 2023, Port Jervis filed an Application for Discovery Order

pursuant to Mass. Gen. Laws c. 233A, § 11 with this Court.

9. On June 8, 2023, this Court Allowed and signed the Discovery Order. The signed

Discovery Order is attached herein as Exhibit 3.

10. On or about June 22, 2023, Brigham and Women’s Hospital was successfully

served with a Subpoena requesting pathology records. The Affidavit of Service is attached

hereto as Exhibit 4.

1
The referenced HIPAA-complaint authorization is included in Exhibit 2.

2
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM
Superior Court - Suffolk
Docket Number 2384CV01301

11. Counsel for Port Jervis attempted to contact Brigham and Women’s Hospital on

July 21, 2023 and August 11, 2023 to obtain the materials.

12. Brigham and Women’s Hospital informed counsel on those dates that the

Subpoena should be served at a different address, even though the facility accepted service of the

Subpoena, and would not comply with the Subpoena.

13. Brigham and Women’s Hospital has continuously refused to cooperate to the

detriment of the pending New York Action.

14. The New York Action is set for trial on October 3, 2023.

15. The counsel for Plaintiff in the New York Action is not opposing this Motion and

to the issuance of the attached Order.

WHEREFORE, Port Jervis respectfully requests this Honorable Court to GRANT their

Unopposed Motion for Contempt of Court Order to Compel Production of All Original

Pathology, and to ORDER Brigham and Women’s Hospital to release all original pathology

materials to Port Jervis’s counsel, to the law offices of Clyde & Co US LLP, Attn: Alex

Feigenbaum, Esq. at 405 Lexington Avenue, 16th Floor, New York, New York 101742 within

fourteen (14) days from receipt of this Order. If Brigham and Women’s Hospital does not

comply, Port Jervis further requests sanctions in the form of costs to be issued against Brigham

and Women’s Hospital related to the drafting and filing of this instant Motion.

2
Pursuant to the Discovery Order. See Exhibit 3.

3
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM
Superior Court - Suffolk
Docket Number 2384CV01301

Respectfully Submitted,

CRISTINA THOMAS KOLMAR LABORATORIES, N/K/A
By her Attorneys, PORT JERVIS LABORATORIES
By Its Attorneys,

/s/ Daniel J. Woodard /s/ Mackenzie L. Brockmyre
Daniel J. Woodard Mackenzie L. Brockmyre (BBO # 708980)
PHILLIPS & PAOLICELLI, LLP mackenzie.brockmyre@clydeco.us
747 Third Ave., 6th Floor Clyde & Co US LLP
New York, NY 10022 265 Franklin Street, Suite 701
Tel: (212) 388-5100 Boston, MA 02110
Tel: (617) 728-0050

Dated: August 16, 2023

CERTIFICATE OF SERVICE

I, Mackenzie L. Brockmyre, hereby certify that on August 16, 2023, a true and correct

copy of the foregoing was served by email upon:

Daniel J. Woodward
Phillips & Paolicelli, LLP
Attorneys for Plaintiff/Defendant
747 third Avenue, 6th Floor
New York, New York 10022

/s/ Mackenzie L. Brockmyre
Mackenzie L. Brockmyre

4
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NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023

Date Filed 8/16/2023 3:24 PM
Superior Court - Suffolk
Docket Number 2384CV01301

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 23-1301
__________________________________________
)
KOLMAR LABORATORIES, n/k/a PORT )
JERVIS LABORATORIES, et al. )
Plaintiff, )
)
v. )
)
CRISTINA THOMAS, )
Defendant. )
_________________________________________ )

[PROPOSED] ORDER

AND NOW, THIS ______ day of ____________, 2023, in consider of the Unopposed

Motion for Contempt of Court Order to Compel, it is ORDERED that:

1. The Motion is GRANTED; and

2. Brigham & Women’s Hospital, who provided services for or on behalf of Cristina

Thomas (DOB: XX/XX1961, SSN: XXX-XX-5096)1, including any agent or employee

thereof, furnish the Plaintiff’s counsel for this Foreign Discovery Matter, Alex

Feigenbaum, Esq., Clyde & Co US LLP, 405 Lexington Avenue, 16th Floor, New York,

New York 10174, with the following:

a. All original pathology materials concerning or related to Cristina Thomas (DOB:

XX/XX/1961, SSN: XXX-XX-5096), including but not limited to, tissue slides,

paraffin blocks, electron micrographs, wet tissue and frozen tissue, and all

immunohistochemical and immunocytochemical stains pertaining to Cristina

Thomas.

1
This motion redacts Cristina Thomas’s personal identifying information in accordance with Supreme Judicial
Court Rule 1:24.
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023

Date Filed 8/16/2023 3:24 PM
Superior Court - Suffolk
Docket Number 2384CV01301

It is hereby FURTHER ORDERED that Brigham and Women’s Hospital, or any

employees or agents therefore, deliver the aforementioned materials to Alex Feigenbaum, Esq.,

Clyde & Co US LLP, 405 Lexington Avenue, 16th Floor, New York, New York 10174, no later

than 12:00 p.m. fourteen (14) days from receipt of this order.

It is hereby FURTHER ORDERED that sanctions in the form of costs be issued against

Brigham and Women’s Hospital relating to the drafting and filing of this instant Motion if the

above-referenced materials are not provided by the above-referenced date.

A photostatic copy of this order shall have the same force and effect as the original.

ENTERED: _____________, 2023 __________________________________
JUSTICE OF THE TRIAL COURT
SUPERIOR COURT
DEPARTMENT
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023

Date Filed 8/16/2023 3:24 PM
Superior Court - Suffolk
Docket Number 2384CV01301

EXHIBIT 1
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 77 RECEIVED NYSCEF: 02/22/2023

SUPREME COURT OF THE STATE OF NEW YORK
ALL COUNTIES WITHIN THE CITY OF NEW YORK
---------------------------------------------------------------------x
IN RE: NEW YORK CITY ASBESTOS LITIGATION
---------------------------------------------------------------------x

CRISTINA THOMAS, NOTICE OF MOTION FOR
OPEN COMMISSION
Plaintiff,
Index No. 190126/2020
-against-
Assigned Judge:
AVON PRODUCTS, INC., et al., Hon. Adam Silvera, J.S.C.

Defendants.

-------------------------------------------------------------------x

PLEASE TAKE NOTICE that upon the annexed Affirmation of Alex Feigenbaum,

dated February 22, 2023, the exhibits annexed thereto, the accompanying Memorandum of Law,

and all prior pleadings and proceedings had herein, Defendant Kolmar Laboratories, Inc. n/k/a

Port Jervis Laboratories Inc. (“Port Jervis”), will move this Court at the Motion Support Office,

located at 60 Centre Street, Room 130, New York, New York 10007, on March 10, 2023, at 9:30

a.m., or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR 3108 and

3111, directing the issuance of an Open Commission to the Court of Common Pleas of the State

of Massachusetts, Suffolk County, to issue a subpoena duces tecum to Brigham and Women’s

Hospital, Pathology Department, 75 Francis Street, Boston, MA 02115, requiring Brigham &

Women’s Hospital to produce pathology materials relating to Plaintiff Cristina Thomas pursuant

to a HIPAA authorization, and for such other and further relief as the court may deem just,

proper, and equitable.

1 of 2
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Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 77 RECEIVED NYSCEF: 02/22/2023

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR § 2214(b), answering

papers, if any, are to be served on the undersigned no later than seven days prior to the return

date of this motion.

Dated: New York, New York
February 22, 2023
Yours, etc.,

CLYDE & CO US LLP

By: /s/ Alex Feigenbaum
Alex Feigenbaum
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Phone: (212) 710-3900
Fax: (212) 710-3950
Email: alex.feigenbaum@clydeco.us

Attorneys for Defendant Port Jervis Laboratories
Inc.
cc: Phillips & Paolicelli, LLP
Attorneys for Plaintiff
747 Third Avenue, 6th Floor
New York, New York 10022

2 of 2
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Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 78 RECEIVED NYSCEF: 02/22/2023

CRISTINA THOMAS, AFFIRMATION IN SUPPORT

Plaintiff, Index No. 190126/2020

-against- Assigned Judge:
Hon. Adam Silvera, J.S.C.
AVON PRODUCTS, INC., et al.,

Defendants.

-------------------------------------------------------------------x

ALEX FEIGENBAUM, an attorney duly admitted to practice law before the courts of the

State of New York, affirms under the penalties of perjury and says:

1. I am an associate attorney with Clyde & Co US LLP, attorneys for Defendant

Kolmar Laboratories, Inc. n/k/a Port Jervis Laboratories Inc. (“Port Jervis”). I am familiar with

the facts and circumstances surrounding this matter based on a review of the materials maintained

by my office concerning this case.

2. I submit this Affirmation in support of Port Jervis’ motion for an Order, pursuant

Suffolk County, to issue a subpoena duces tecum to Brigham and Women’s Hospital, 75 Francis

Street, Boston, MA 02115, requiring Brigham and Women’s Hospital to produce pathology

materials relating to Plaintiff Cristina Thomas (“Thomas”) pursuant to a HIPAA authorization,

and for such other and further relief as the court may deem just, proper, and equitable.

3. Plaintiff Thomas claims to have developed mesothelioma as a result of exposure to

asbestos stemming from her use of talcum powder products. A Summons and Complaint reflecting

these claims was filed on May 27, 2020 and thereafter filed an Amended Summons and Complaint

1 of 4
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FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 78 RECEIVED NYSCEF: 02/22/2023

on June 4, 2020. See Exhibit A. Port Jervis joined issue by serving its Verified Answer on

October 8, 2020. See Exhibit B.

4. Thomas underwent a surgical procedure in 2020 that resulted in portions of pleura

and tissue being removed. A copy of the pathology report from this procedure is attached hereto

as Exhibit C. The procedure was performed at Brigham and Women’s Hospital in Boston.

5. Attached hereto as Exhibit D is a copy of a HIPAA-compliant authorization

allowing Port Jervis to obtain Thomas’ medical records (specifically including her pathology

materials) from Brigham and Women’s Hospital.

6. Port Jervis has requested pathology materials from this facility via the HIPAA

authorization so that it can perform a fiber digestion study on them and determine if Thomas’

mesothelioma is related to asbestos exposure, and if so if it can be related to the type of asbestos-

containing materials which could have been used in its product. Brigham and Women’s Hospital

has refused to provide these materials despite a HIPAA-compliant authorization allowing for Port

Jervis’ access to the materials.

7. Attached hereto for the Court’s reference and consideration are Port Jervis’ draft

subpoena duces tecum to be sent via open commission to Brigham and Women’s Hospital (see

Exhibit E), and Port Jervis’ proposed order granting an open commission (see Exhibit F).

CONCLUSION

8. For the reasons stated herein and in the accompanying Memorandum of Law, Port

Jervis requests that this Court issue an Order pursuant to CPLR 3108 and 3111 directing the

Superior Court, Suffolk County to issue a subpoena duces tecum to Brigham and Women’s

Hospital, 75 Francis Street, Boston, MA 02115, requiring Brigham and Women’s Hospital to

produce pathology materials relating to Plaintiff Cristina Thomas pursuant to a HIPAA

2 of 4
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Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 78 RECEIVED NYSCEF: 02/22/2023

authorization, and for such other and further relief as the court may deem just, proper, and

equitable.

Dated: New York, New York
February 22, 2023

/s/ Alex Feigenbaum
ALEX FEIGENBAUM

3 of 4
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Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 78 RECEIVED NYSCEF: 02/22/2023

CERTIFICATION

Pursuant to 22 NYCRR 130.1-1a, the undersigned, an attorney admitted to practice law

before the courts of the State of New York, certifies that, upon information and belief, and after

reasonable inquiry, the contentions contained in the within document are not frivolous.

Dated: New York, New York
February 22, 2023

/s/ Alex Feigenbaum
ALEX FEIGENBAUM

4 of 4
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FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 83 RECEIVED NYSCEF: 02/22/2023

Exhibit E
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 83 RECEIVED NYSCEF: 02/22/2023

CRISTINA THOMAS, SUBPOENA DUCES TECUM

Plaintiff, Index No. 190126/2020

-against- Assigned Judge:
Hon. Adam Silvera, J.S.C.
AVON PRODUCTS, INC., et al.,

Defendants.

-------------------------------------------------------------------x

THE PEOPLE OF THE STATE OF NEW YORK

TO: Brigham and Women’s Hospital
Attn: Pathology Department
75 Francis Street
Boston, MA 02115

GREETINGS:

WE COMMAND YOU, all business and excuses being set aside, to produce and permit

inspection of at the time and place indicated herein the following materials identified herein in

your possession or control:

1. Pathology Material taken from Plaintiff Cristina Thomas (Date of
Birth: 12/05/1961)

The responsive items shall be received within twenty-five (25) days of service of this

Subpoena Duces Tecum by Alex Feigenbaum, Esq., at Clyde & Co US LLP, 405 Lexington

Avenue, 16th Floor, New York, New York 10174, on the 4th day of April, 2023. 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

1
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 83 RECEIVED NYSCEF: 02/22/2023

the material issues in the above-captioned action pending in the Supreme Court of the State of

New York in New York County.

THIS IS NOT A DEPOSITION. NO TESTIMONY WILL BE TAKEN. In lieu of a

personal appearance, the requested materials may be certified pursuant to N.Y. C.P.L.R

§ 3122-a, and delivered on or before the scheduled date of production to Alex Feigenbaum, Esq.,

at Clyde & Co US LLP, 405 Lexington Avenue, 16th Floor, New York, New York 10174.

Failure to comply with this Subpoena Duces Tecum is punishable as a contempt of Court

and shall make you liable to the persons on whose behalf this Subpoena Duces Tecum was issued

for a penalty not to exceed one hundred fifty dollars ($150.00) and all damages sustained by reason

of your failure to comply.

Please contact Alex Feigenbaum, Esq. at (973) 210-6726 to discuss compliance with

this subpoena.

Dated: New York, New York
February 22, 2023
Yours, etc.,

CLYDE & CO US LLP

By: /s/ Alex Feigenbaum
Alex Feigenbaum
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Phone: (212) 710-3900
Fax: (212) 710-3950
Email: alex.feigenbaum@clydeco.us

Attorneys for Defendant Port Jervis Laboratories
Inc.
cc: Phillips & Paolicelli, LLP
Attorneys for Plaintiff
747 Third Avenue, 6th Floor
New York, New York 10022

2
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NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 84 RECEIVED NYSCEF: 02/22/2023

Exhibit F
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 84 RECEIVED NYSCEF: 02/22/2023

CRISTINA THOMAS, ORDER DIRECTING
OPEN COMMISSION
Plaintiff,
Index No. 190126/2020
-against-
Assigned Judge:
AVON PRODUCTS, INC., et al., Hon. Adam Silvera, J.S.C.
Defendants.

-------------------------------------------------------------------x

Defendant Kolmar Laboratories, Inc. n/k/a Port Jervis Laboratories Inc. (“Port Jervis”)

has moved this Court for an Order directing the issuance of an Open Commission to enable Port

Jervis to request that the Superior Court of the State of Massachusetts, Suffolk County issue a

subpoena duces tecum to Brigham and Women’s Hospital, 75 Francis Street, Boston, MA 02115,

requiring Brigham and Women’s Hospital to produce pathology materials relating to Plaintiff

Cristina Thomas pursuant to a HIPAA authorization, and for such other and further relief as the

court may deem just, proper, and equitable.

The subpoena duces tecum directs the above-referenced entity to produce Plaintiff’s

pathology materials pursuant to a HIPAA authorization to Alex Feigenbaum, Esq., attorney at

Clyde & Co US LLP, 405 Lexington Avenue, 16th Floor, New York, New York 10174.

The motion, having regularly come on to be heard before this Court on the ____ day of

___________________, 2023, and Port Jervis, having appeared in support thereof through its

attorneys, Clyde & Co US, LLP, and

Now upon reading all pleadings filed in this matter and due deliberation having been

had thereon and upon motion of Clyde and Co. US LLP, attorneys for Port Jervis, it is
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 84 RECEIVED NYSCEF: 02/22/2023

ORDERED, that Port Jervis’ Motion for an Open Commission is GRANTED in all

respects; and it is further

ORDERED that an Open Commission issued to Judges of Superior Court of the State of

Massachusetts, Suffolk County, enabling the production of the pathology material demanded in

the subpoena; and it is further

ORDERED, that Brigham and Women’s Hospital, 75 Francis Street, Boston, MA 02115,

is to produce pathology materials relating to Plaintiff Cristina Thomas pursuant to a HIPAA

authorization directly to Alex Feigenbaum, Esq., at Clyde & Co US LLP, 405 Lexington

Avenue, 16th Floor, New York, New York 10174, and also

ORDERED, that counsel for Port Jervis shall serve a copy of this Order upon all counsel

of record within ______ days of receipt thereof.

ENTER:

__________________________________
Hon. Adam Silvera, J.S.C.
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 84 RECEIVED NYSCEF: 02/22/2023

CRISTINA THOMAS, OPEN COMMISSION TO ISSUE
SUBPOENA DUCES TECUM
Plaintiff,
Index No. 190126/2020
-against-
Assigned Judge:
AVON PRODUCTS, INC., et al., Hon. Adam Silvera, J.S.C.
Defendants.

-------------------------------------------------------------------x

COMMISSION

To: Kevin McCaffrey, Esq.
Clyde & Co US LLP
Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174

Any person before whom depositions may be taken under the rules or practice of the
State of Massachusetts.

We, with full faith in your prudence and competency, have appointed you by a Judge of

your Court, Commission and by these present do authorize you to issue a subpoena duces tecum

to the below-listed entity, directing it to produce certain documents and things pursuant to

Article 31 of the Civil Practice Law and Rules (“CPLR”) of the State of New York, at such time,

date, and place as designated in the subpoena duces tecum attached hereto,

The entity subject to this Commission is:
Brigham and Women’s Hospital
Pathology Department
75 Francis Street
Boston, MA 02115
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 84 RECEIVED NYSCEF: 02/22/2023

We therefore request of you by the proper and usual process of your Court, to cause this

entity to be issued a subpoena duces tecum to produce certain documents and things at such date,

time, and place as designated in in the subpoena duces tecum.

Pursuant to CPLR 3102(e) of the State of New York:

[W]hen under any mandate, writ or commission issued out of any court of
record in any other state, territory, district or foreign jurisdiction, or whenever
upon notice or agreement, it is required to take the testimony of a witness in the
state, he or she may be compelled to appear and testify in the same manner and
by the same process as may be employed for the purpose of taking testimony in
actions pending in the state. The supreme court or a county court shall make any
appropriate order in aid of taking such a deposition.

In accordance with the foregoing statute we shall be and stand ready, willing, and able to

do the same for you, as we are asking you to do herein, in a similar case when required.

WITNESS, the Honorable Adam Silvera, Justice of the Supreme Court of the State of

New York, County of New York, this _____day of ___________, 2023.

BY THE COURT:

_____________________________
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 85 RECEIVED NYSCEF: 02/22/2023

CRISTINA THOMAS,

Plaintiff, Index No. 190126/2020

-against- Assigned Judge:
Hon. Adam Silvera, J.S.C.
AVON PRODUCTS, INC., et al.,

Defendants.

-------------------------------------------------------------------x

MEMORANDUM OF LAW OF PORT JERVIS LABORATORIES INC.
IN SUPPORT OF MOTION FOR OPEN COMMISSION

CLYDE & CO US LLP
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174

Attorneys for Defendant Port Jervis
Laboratories Inc.

1 of 5
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/14/2023
Date Filed 8/16/2023 3:24 PM INDEX NO. 190126/2020
FILED: NEW YORK COUNTY CLERK 02/22/2023 05:53 PM
Superior Court - Suffolk
Docket
NYSCEFNumber 2384CV01301
DOC. NO. 85 RECEIVED NYSCEF: 02/22/2023

SUMMARY OF ARGUMENT

Defendant Port Jervis Laboratories Inc. (“Port Jervis”) is entitled to an open commission

Case Info

Judge

Adam Silvera Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

September 14, 2023

Case Filing Date

January 05, 2023

County

Parties

ANGIOLILLO, JOSEPH M Attorney for the Defendant
BARRETTS MINERALS INC. Defendant
BEACON CMP CORP. Defendant
BERQUIST, DARRON ERICK Attorney for the Plaintiff
BRENNTAG SPECIALTIES LLC (individually and as successor to Minerals and Pigment Solutions Inc., successor to Whittaker, Clark & Daniels Inc.); Defendant
CHARLES B. CHRYSTAL COMPANY INC.; Defendant
COLGATE PALMOLIVE CO.; Defendant
CONOPCO INC. (individually, doing business as, and as successor to Elizabeth Arden Inc. and Evyan Perfumes Inc., Parfums International and Idea Fragrances Co.) Defendant
Dan Albasry as Trustee of the Estate of Newal Al Saad Plaintiff
Firas Mohammad Plaintiff
GASIOR, JOAN M. Attorney for the Defendant
GLAXOSMITHKLINE CONSUMER HEALTHCARE HOLDINGS (US) LLC (individually, d/b/a and as successor to Yardley of London, Yardley of London Ltd., Yardley of London (U.S.) LLC, SmithKline Beecham PLC and Beecham Group LLC); Defendant
GLAXOSMITHKLINE LLC (individually, d/b/a and as successor to Yardley of London, Yardley of London Ltd., Yardley of London (U.S.) LLC, SmithKline Beecham PLC and Beecham Group LLC); Defendant
GSK CONSUMER HEALTH INC. (individually, d/b/a and as successor to Yardley of London, Yardley of London Ltd., Yardley of London (U.S.) LLC, SmithKline Beecham PLC and Beecham Group LLC); Defendant
HEGVIK, BENJAMIN JAMES Attorney for the Defendant
HOLZAPFEL, CHRISTINA JOAN Attorney for the Defendant
KOZAK, CHRISTOPHER S Attorney for the Defendant
KUSZMERSKI, DANIEL ROBERT Attorney for the Defendant
LORNAMEAD INC. (individually and as successor to Lornamead Acquisitions Ltd. and Lornamead Brands Inc., d/b/a Yardley of London a/k/a Yardley); Defendant
MASSIMI, LISA MARIE Attorney for the Defendant
MCCAFFREY, KEVIN CULLEN Attorney for the Defendant
MUSE, ERIKA LORI Attorney for the Defendant
PFIZER INC. Defendant
PORT JERVIS LABORATORIES INC. (f/k/a Kolmar Laboratories Inc.); Defendant
RIZVI, SYED KAZIM Attorney for the Defendant
RUTKOWSKI, DAVID EDWARD Attorney for the Defendant
SAUL, JASON MICHAEL Attorney for the Defendant
SQUITIERI, VIRGINIA PAULA Attorney for the Defendant
TEMPESTA, CAROL MARIA Attorney for the Defendant
THE PROCTER & GAMBLE CO. (individually, d/b/a, and as successor to Yardley of London Ltd., Yardley of London a/k/a Yardley, Yardley of London Inc., and Yardley of London (U.S.) LLC)); Defendant
WHITTAKER, CLARK & DANIELS INC. (individually, d/b/a, and successor to Charles Mathieu Inc. (d/b/a Charles Mathieu & Co. and Chas. Mathieu Inc.), American Talc Company Inc., Metropolitan Talc Company Inc., Imperial Products Co. Inc., and Resource Processo Defendant
Wilson, JOSIE S Attorney for the Defendant
YARDLEY OF LONDON INC. (f/k/a Lentheric Inc. and Lentheric Distributors Inc.); Defendant
YARDLEY OF LONDON LTD., Defendant
CARL SCHWARZ Attorney
Dennis St. George Attorney
ALEX FEIGENBAUM Attorneys for Defendants
RICHARD PU Attorney
AMBRE BRANDIS Attorneys for Plaintiffs
CHRISTINA JASON Attorneys for Defendants
JON AVINS Attorney
SYED KABIR Attorneys for Defendants
BRADLEY WANNER Attorney
WILLIAM NAPLES Attorney
WHITNEY BARROWS Attorney
HAYLEY KORNACHUK Attorney
CHRISTOPHER STUCKO Attorney
GAVIN ROONEY Attorney
ADRIANNA RUDZINSKY Attorneys for Defendants
TIMOTHY MCCANN Attorneys for Defendants
JEFFREY FEGAN Attorney
OLIVIA KELLY Attorneys for Plaintiffs
MICHELLE BURKE Attorneys for Defendants
JEROME BLOCK Attorneys for Plaintiffs
ERIK DIMARCO Attorneys for Defendants
LISA SIMPSON Attorneys for Defendants
Andrew Sapon Attorneys for Defendants
ESTHER CLOVIS Attorneys for Defendants
WALDER THAME-TURNER Attorneys for Defendants
BRIAN CIFUENTES Attorneys for Defendants
BRIAN SEXTON Attorneys for Defendants
ALFRED SARGENTE Attorneys for Defendants
ELIAS ARROYO Attorneys for Defendants
Kevin McCaffrey Attorneys for Defendants
THOMAS LEONE Attorney
RICHARD GELB Attorney
JACK FROST Attorney
MICHELLE PARIKH Attorney
JONATHAN DONATH Attorney
CATHERINE SELIN Attorney
HOWARD MISKIN Attorney
JAMES LEE Attorney
JENNIFER RIE Attorney
KIMBERLY RAI Attorney
EDWARD HORN Attorney
MICHAEL L'HOMME Attorneys for Defendants
THOMAS KURLAND Attorneys for Defendants
JAMES KRAMER Attorneys for Plaintiffs
DANNY KRAFT Attorneys for Plaintiffs
JANELLE WINTERS Attorneys for Defendants
STEPHANIE BALDELLI Attorneys for Defendants
RYAN ROBERTS Attorneys for Defendants
Erik DiMarco Attorneys for Defendants
MICHELLE HA Attorneys for Defendants
BENJAMIN HAGLUND Attorneys for Defendants
JONATHAN LEE Attorneys for Defendants
AHMED KASSIM Attorneys for Defendants
PATRICK LYNOTT Attorneys for Defendants
JONATHAN KROMBERG Attorneys for Defendants
PATRICK NAYLON Attorneys for Defendants
MONAKEE MARSEILLE Attorneys for Defendants
JOHN FANNING Attorneys for Defendants
SARAH SCHAEFFER-ROTH Attorneys for Defendants
JOHN WETMORE Attorneys for Plaintiffs
ANDREW BAIN Attorneys for Defendants
MICHAEL FITZPATRICK Attorneys for Defendants
MICHELLE GRADY Attorneys for Defendants

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