Motion-Secondary: 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.)

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                        INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                           RECEIVED NYSCEF: 07/10/2023




          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF NEW YORK
          IN RE: NEW YORK CITY
                 ASBESTOS LITIGATION
                                                                       Index No.: 190002/2023
          THIS DOCUMENT RELATES TO:
                                                                       AFFIRMATION IN OPPOSITION TO PORT
          DAN ALBASRY, as Trustee of the Estate of NEWAL AL            JERVIS LABORATORIES INC. MOTION TO
           SAAD, and FIRAS MOHAMMAD                                    DISMISS FOR FORUM NON CONVENIENS
                                                                       (MOTION # 001)
                                          Plaintiffs,

                  -against-

          BARRETTS MINERALS INC., et al.,

                                          Defendants.




                  DARRON E. BERQUIST, Esq., an attorney admitted to practice law before the courts of New

          York, hereby affirms the following under the penalties of perjury and pursuant to CPLR 2106:

          1.      I am an attorney with The Lanier Law Firm PLLC, counsel for plaintiffs, the Estate of Newal Al

         Saad and Firas Mohammad. I have reviewed the file maintained by my office regarding this matter

         and, as such, I am aware of the facts and circumstances of this case.

          2.      I submit this Affirmation in opposition to Port Jervis Laboratories Inc.’s Motion to Dismiss

          based upon forum non conveniens.

          3.      Attached as Exhibit 1 is a true and correct copy of the Affidavit of Robert Edmonds dated

          January 25, 2023.

          4.      Attached as Exhibit 2 is a true and correct copy of Plaintiffs’ Initial Fact Sheet.

          5.      Attached as Exhibit 3 is a true and correct copy of the Affidavit of Dinan Mohammad dated

          July 6, 2023.




          2725377_3

                                                           1 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                  INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                        RECEIVED NYSCEF: 07/10/2023




          6.      Attached as Exhibit 4 is a true and correct copy of the Affidavit of Dan Albasry dated July 6,

          2023.

          7.      Attached as Exhibit 5 is a true and correct copy of the Affidavit of Maytham Ibrahim dated

         April 13, 2023.

          8.      Attached as Exhibit 6 is a true and correct copy of a memorandum from Johnson & Johnson

          Baby Products Company dated July 8, 1980.

          9.      Attached as Exhibit 7 is a true and correct copy of a Johnson & Johnson Baby Products

          Company Process Specification dated July 29, 1980.

          10.     Attached as Exhibit 8 is a true and correct copy of a letter from Johnson & Johnson Baby

          Products Company to Kolmar dated December 19, 1980.

          11.     Attached as Exhibit 9 is a true and correct copy of a Johnson & Johnson Baby Products

          Company Process Specification for the years 1981-1985.

          12.     Attached as Exhibit 10 is a true and correct copy of a Johnson & Johnson Baby Products

          Company Material Specification from 1987.

          13.     Attached as Exhibit 11 is a true and correct copy of the transcript of the testimony of Ronald

          Yakupcin dated January 23, 2020.

          14.     Attached as Exhibit 12 is a true and correct copy of the transcript of the testimony of Robert

          Edmonds dated November 16, 2020.

          15.     Attached as Exhibit 13 is a true and correct copy of Material Specification of Luzenac America

         Inc. for Windsor Grade 66 Talc.

          16.     Attached as Exhibit 14 is a true and correct copy of a Johnson & Johnson Material Specification

          dated November 15, 2001.




          2725377_3

                                                         2 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                  INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                        RECEIVED NYSCEF: 07/10/2023




          17.    Attached as Exhibit 15 is a true and correct copy of correspondence from Johnson & Johnson

          to D.T. Walker dated January 27, 1970.

          18.    Attached as Exhibit 16 is a true and correct copy of a Johnson & Johnson Summary Report

          regarding American Ground Italian Talc.

          19.    Attached as Exhibit 17 is a true and correct copy of a Johnson & Johnson memorandum dated

          October 4, 1976.

          20.    Attached as Exhibit 18 is a true and correct copy of Kolmar Laboratories Inc. letterhead dated

          November 16, 1973.

          21.    Attached as Exhibit 19 is a true and correct copy of Rosner, et al., “Nondetected”: The Politics

          of Measurement of Asbestos in Talc, 1971-1976, Am. J. Public Health, 2019 Jul;109(7):969-974.

          22.    Attached as Exhibit 20 is a true and correct copy of a FDA memorandum regarding “discussion

          session on asbestos and talc” dated August 3, 1971.

          23.    Attached as Exhibit 21 is a true and correct copy of a Johns Manville memorandum dated

          August 11, 1971.

          24.    Attached as Exhibit 22 is a true and correct copy of meeting minutes of the Cosmetic, Toiletry

          and Fragrance Association Inc. dated August 21, 1975.

          25.    Attached as Exhibit 23 is a true and correct copy of a memorandum of the Cosmetic, Toiletry

          and Fragrance Association Inc. dated April 26, 1976.

          26.    Attached as Exhibit 24 is a true and correct copy of meeting minutes of the Cosmetic, Toiletry

          and Fragrance Association Inc. dated July 8, 1976.

          27.    Attached as Exhibit 25 is a true and correct copy of correspondence from Kolmar Laboratories

         Inc. to Walter C. McCrone Associates Inc. dated December 27, 1972.




          2725377_3

                                                         3 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                    INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                         RECEIVED NYSCEF: 07/10/2023




          28.    Attached as Exhibit 26 is a true and correct copy of correspondence from Kolmar Laboratories

         Inc. to Walter C. McCrone Associates Inc. dated February 28, 1973.

          29.    Attached as Exhibit 27 is a true and correct copy of reports of Seymour Z. Lewin of New York

         University.

          30.    Attached as Exhibit 28 is a true and correct copy of meeting minutes of the Cosmetic, Toiletry

          and Fragrance Association Inc. dated October 11, 1973.

          31.    Attached as Exhibit 29 is a true and correct copy of a memorandum dated December 19, 1974,

         regarding a meeting of the CTFA Talc Subcommittee.

          32.    Attached as Exhibit 30 is a true and correct copy of memorandum dated September 17, 1974,

         regarding CTFA Talc Subcommittee.

          33.    Attached as Exhibit 31 is a true and correct copy of CTFA Method J 4-1 issued October 7, 1976.

          34.    Attached as Exhibit 32 is a true and correct copy of Curriculum Vitae of Ronald J. Yakupcin.

          35.    Attached as Exhibit 33 is a true and correct copy of the transcript of the testimony of Mark

          Pollack from August 29, 2018.

          36.    Attached as Exhibit 34 is a true and correct copy of meeting minutes of the Cosmetic, Toiletry

          and Fragrance Association Inc. (various).

          37.    Attached as Exhibit 35 is a true and correct copy of Bird, et al., A Review of the Talc Industry’s

          Influence on Federal Regulation and Scientific Standards for Asbestos in Talc, New Solut. 2021

          Aug;21(2):152-169.

          38.    Attached as Exhibit 36 is a true and correct copy of Johnson & Johnson memorandum dated

         July 9, 1971.

          39.    Attached as Exhibit 37 is a true and correct copy of correspondence from Dr. Langer to

          Johnson & Johnson dated November 10, 1971.



          2725377_3

                                                         4 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                    INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                          RECEIVED NYSCEF: 07/10/2023




          40.     Attached as Exhibit 38 is a true and correct copy of a Johnson & Johnson memorandum dated

         July 12, 1971.

          41.     Attached as Exhibit 39 is a true and correct copy of a Report on Talcum Powder dated June

         29, 1971.

          42.     Attached as Exhibit 40 is a true and correct copy of a New York Post article dated June 29,

          1971.

          43.     Attached as Exhibit 41 is a true and correct copy of a Johnson & Johnson memorandum dated

         November 29, 1972.

          44.     Attached as Exhibit 42 is a true and correct copy of a memorandum regarding Meeting with

          Dra. Selikoff, Langer and Rohl at Mt. Sinai dated March 15, 1976.

          45.     Attached as Exhibit 43 is a true and correct copy of NYSCEF Docket inquiry results.

          46.     Attached as Exhibit 44 is a true and correct copy of an email exchange with Scarborough

          Health Network.

          47.     Attached as Exhibit 45 is a true and correct copy of the Affidavit of Dan Albasry dated July 6,

          2023.

          48.     Attached as Exhibit 46 is a true and correct copy of the Affidavit of Edward Bergeron dated

         July 6, 2023.

          49.     Attached as Exhibit 47 is a true and correct copy of records from the Division of Corporations.

          50.     Attached as Exhibit 48 is a true and correct copy of Whittaker, Clark & Daniels Inc.’s answers

         to interrogatories dated March 5, 2009.

          51.     Attached as Exhibit 49 is a true and correct copy of Conopco Inc.’s answers to interrogatories

          dated January 29, 2016.

          52.     Attached as Exhibit 50 is a true and correct copy of Affidavits of Service in this case.



          2725377_3

                                                          5 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                    INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                          RECEIVED NYSCEF: 07/10/2023




          53.      Attached as Exhibit 51 is a true and correct copy of plaintiffs’ response to WCD “Notice to

         Preserve and Observe” dated March 31, 2023.

          54.      Attached as Exhibit 52 is a true and correct copy of Whittaker, Clark & Daniels Inc.’s answers

         interrogatories dated December 13, 2022.

          55.      Attached as Exhibit 53 is a true and correct copy of Mancinelli et al. v. Royal Bank of Canada

          et al.

          56.      Attached as Exhibit 54 is a true and correct copy of the decision in Tribax Management Ltd.

          V. Laswind Investment Ltd. dated August 25, 2006.

          57.      Attached as Exhibit 55 is a true and correct copy of transcript of the testimony of Bohdan

         Prybyla from October 26, 2022.

          58.      Attached as Exhibit 56 is a true and correct copy of Conopco Inc.’s supplemental answers to

         interrogatories dated February 19, 2016.

          59.      Attached as Exhibit 57 is a true and correct copy of a decision and order in Kolmar

          Laboratories, Inc. v. Eaves dates June 29, 2021.

          60.      Attached as Exhibit 58 is a true and correct copy of the Memorandum of Law in Support of

         Port Jervis Laboratories Inc., Incorrectly S/H/A Kolmar Laboratories, Inc.’s Motion for Change of

         Venue dated September 29, 2022.

          61.      Attached as Exhibit 59 is a true and correct copy of Plaintiffs Expert Witness List and CPLR

         3101(d) Disclosures dated June 26, 2023.

          62.      Attached as Exhibit 60 is a true and correct copy of Plaintiffs Fact Witness list dated June 12,

         2023.

          63.      Attached as Exhibit 61 is a true and correct copy of the transcript of the testimony of Michael

          Richard Burke from July 10, 2018.



          2725377_3

                                                           6 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                   INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                         RECEIVED NYSCEF: 07/10/2023




          64.     Attached as Exhibit 62 is a true and correct copy of Colgate-Palmolive Co.’s amended Fact

          Witness list dated October 8, 2019.

          65.     Attached as Exhibit 63 is a true and correct copy of the transcript of the testimony of Jack

          Linard from February 3, 2021.

          66.     Attached as Exhibit 64 is a true and correct copy of Lornamead Inc.’s answers to

          interrogatories dated December 14, 2022.

          67.     Attached as Exhibit 65 is a true and correct copy of the agenda for the FDA “Good

          Manufacturing Practices for Cosmetic Products Listening Session” public meeting on June 1, 2023.

          68.     Attached as Exhibit 66 is a true and correct copy of Lisa Wiseman’s résumé.

          69.     Attached as Exhibit 67 is a true and correct copy of Conopco, Inc’s amended expert witness

         list dated July 5, 2023.

          70.     Attached as Exhibit 68 is a true and correct copy of Expert Witness list of defendant Charles

         B. Chrystal, Inc. dated November 22, 2022.

          71.     Attached as Exhibit 69 is a true and correct copy of Expert witness list for defendant Kolmar

          Laboratories Inc. dated November 15, 2022.

          72.     Attached as Exhibit 70 is a true and correct copy of Expert witness list disclosures of

          defendants The Procter & Gamble Company and Bristol-Myers Squibb Company dated August 2,

          2017.

          73.     Attached as Exhibit 71 is a true and correct copy of the decision and order in Pyle v. Pfizer

         dated August 15, 2018.

          74.     Attached as Exhibit 72 is a true and correct copy of the decision and order in Black v. Brenntag

         North America dated August 6, 2018.




          2725377_3

                                                         7 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                                                 INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                                       RECEIVED NYSCEF: 07/10/2023




          75.    Attached as Exhibit 73 is a true and correct copy of the decision and order in Fletcher v. Avon

         Products, Inc. dated March 25, 2020.

          76.    Attached as Exhibit 74 is a true and correct copy of the decision and order in DeKlerk v.

         Bloomingdales, Inc. dated July 1, 2020.

          77.    Attached as Exhibit 75 is a true and correct copy of Barretts Minerals Inc.’s filings with the

          New York Department of State.

          78.    Attached as Exhibit 76 is a true and correct copy of New York Times article dated September

          18, 1983, entitled “Dr. Walter Langer, founder of Evyan Perfume Concern.”

          79.    Attached as Exhibit 77 is a true and correct copy of Chicago Tribune article dated January 6,

          1989, entitled “Unilever packages another big deal.”

          80.    Attached as Exhibit 78 is a true and correct copy of New York Times article dated September

          24, 1989, entitled “A Battle for Brands Propels Buyout.”

          81.    Attached as Exhibit 79 is a true and correct copy of Elizabeth Arden Inc.’s schedule 14A filed

          with security exchange commission dated June 16, 2016.

          82.    Attached as Exhibit 80 is a true and correct copy of W. A. Bogart, Guardian of Civil

          Rights…Medieval Relic”: The Civil Jury in Canada, 62 Law & Contemp. Probs. 305.

          83.    Attached as Exhibit 81 is a true and correct copy of the KCIC presentation at the National

          Asbestos Litigation Conference.

          84.    Attached as Exhibit 82 is a true and correct copy of Schmitt, et al., Asbestos Cases and the

          Courts: No Logjam, Congress Watch, Feb. 2006.

          85.    Attached as Exhibit 83 is a true and correct copy of distance calculations via Google Maps.

          86.    Attached as Exhibit 84 is a true and correct copy of Kolmar Laboratories Inc.’s expert witness

         list dated April 6, 2022.



          2725377_3

                                                        8 of 9
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM                            INDEX NO. 190002/2023
NYSCEF DOC. NO. 85                                                    RECEIVED NYSCEF: 07/10/2023




          Dated: July 10, 2023
                 New York, New York         Respectfully submitted,


                                           ____________________________________
                                           Darron E. Berquist, Esq.
                                           THE LANIER LAW FIRM PLLC
                                           Attorneys for Plaintiffs
                                           126 E. 56th St., 6th Fl.
                                           New York, NY 10022
                                           Tel.: (212) 421-2800
                                           darron.berquist@lanierlawfirm.com




          2725377_3

                                      9 of 9