On January 05, 2023 a
Party Notice
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 03/09/2023 04:47 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAN ALBASRY, as Trustee of the Estate of X
NEWAL AL SAAD, and FIRAS MOHAMMAD, : Index No. 190002/2023
:
:
Plaintiffs, :
: NOTICE TO PRESERVE
v. : AND OBSERVE
:
BARRETTS MINERALS INC., et al., :
:
Defendants. X
PLEASE TAKE NOTICE that pursuant to New York Civil Practice Law and Rules 3101
and 3120, defendant, Whittaker, Clark & Daniels, Inc. (“WCD”), demands that Plaintiffs, Dan
Albasry, as Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), produce
and permit the following:
1. WCD formally demands that any of Plaintiffs’ alleged talcum products be preserved in
their present condition and not be modified, sampled, destroyed, or tested in any way until
an agreement can be reached as to the disclosure of protocols and observation of any
planned storage or testing. If the products/samples are modified, sampled, destroyed, or
tested in any way, we reserve all rights to make a Motion for Spoliation and for all
appropriate related relief and sanctions.
2. WCD demands the opportunity to inspect and photograph, in its current location and
condition, any talcum product(s) at issue that were claimed to be in Plaintiff’s possession
before the filing of this lawsuit and which may be identified in Plaintiffs’ Interrogatory
Responses and/or deposition testimony.
3. WCD requests a sworn Affidavit, including the following details: when and where each
product was obtained; a detailed chain of custody from original receipt of each item up to
the present day; a description of the conditions and circumstances in which the product is
alleged to have been stored prior to the commencement of the lawsuit (including who,
what, when, where, and how); a description of the conditions and circumstances (including
who, what, when, where, and how) in which the product is presently stored; and, the exact
amount of product remaining within the container.
4. WCD further requests advanced notice (at least 10 business days) in writing of the
individual expert retained if testing of the aforementioned product(s) is planned to be
performed. If no determination has been made, WCD demands that this information be
provided immediately after such determination has been made.
5. WCD further demands advanced notice (at least 10 business days) of any intention to
remove any portion of the product contents from its container, including any division of
4880-2009-0706v.1
1 of 2
FILED: NEW YORK COUNTY CLERK 03/09/2023 04:47 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/09/2023
the remaining product, and demands a third-party neutral be assigned for the division of
such product.
6. WCD requests the following with respect to Plaintiffs’ experts’ testing of any such product
or sample described in the above Paragraphs:
a. Written outline of the testing protocol, including the methods and equipment to
be used, as well as the mineral characterization parameters planned to be used,
and the
b. Opportunity for defendants’ designated representative(s) to be present at any
such testing, to observe, and to record and/or photograph Plaintiffs’ experts’
sample preparation and analysis of the product(s).
PLEASE TAKE FURTHER NOTICE, that WCD demands that Plaintiffs, Dan Albasry, as
Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), undertake the
following steps to preserve the tissue evidence in this matter:
7. Preserve any and all tissue samples, slides, and block materials and that Plaintiffs
immediately notify WCD with respect to the location of these materials;
8. Preserve any and all radiology materials, including CT scans;
9. Requests that there be no destruction or alteration of pathology materials, including but not
limited to tissue samples or biopsy material, as well as any digestive studies;
10. Additionally, WCD requests that Plaintiffs provide immediate notice, at least 48 hours in
advance, of any autopsy, and provide WCD’s representative with an opportunity to observe
any such procedure.
PLEASE TAKE FURTHER NOTICE, that in the event that you should fail to provide the
above-requested information within thirty (30) days, a motion shall be made seeking appropriate
relief.
PLEASE TAKE FURTHER NOTICE that this is a continuing and ongoing demand.
Dated: March 9, 2023
LANDMAN CORSI BALLAINE & FORD P.C.
By: /s/ Christina J. Holzapfel
Christina J, Holzapfel, Esq.
Attorneys for Defendant,
WHITTAKER, CLARK & DANIELS, INC.
One Gateway Center, 22nd Floor
Newark, New Jersey 07102
(973) 623-2700
TO: All parties via NYSCEF
2
4880-2009-0706v.1
2 of 2
Preview
FILED: NEW YORK COUNTY CLERK 03/09/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAN ALBASRY, as Trustee of the Estate of X NEWAL AL SAAD, and FIRAS MOHAMMAD, : Index No. 190002/2023 : : Plaintiffs, : : NOTICE TO PRESERVE v. : AND OBSERVE : BARRETTS MINERALS INC., et al., : : Defendants. X PLEASE TAKE NOTICE that pursuant to New York Civil Practice Law and Rules 3101 and 3120, defendant, Whittaker, Clark & Daniels, Inc. (“WCD”), demands that Plaintiffs, Dan Albasry, as Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), produce and permit the following: 1. WCD formally demands that any of Plaintiffs’ alleged talcum products be preserved in their present condition and not be modified, sampled, destroyed, or tested in any way until an agreement can be reached as to the disclosure of protocols and observation of any planned storage or testing. If the products/samples are modified, sampled, destroyed, or tested in any way, we reserve all rights to make a Motion for Spoliation and for all appropriate related relief and sanctions. 2. WCD demands the opportunity to inspect and photograph, in its current location and condition, any talcum product(s) at issue that were claimed to be in Plaintiff’s possession before the filing of this lawsuit and which may be identified in Plaintiffs’ Interrogatory Responses and/or deposition testimony. 3. WCD requests a sworn Affidavit, including the following details: when and where each product was obtained; a detailed chain of custody from original receipt of each item up to the present day; a description of the conditions and circumstances in which the product is alleged to have been stored prior to the commencement of the lawsuit (including who, what, when, where, and how); a description of the conditions and circumstances (including who, what, when, where, and how) in which the product is presently stored; and, the exact amount of product remaining within the container. 4. WCD further requests advanced notice (at least 10 business days) in writing of the individual expert retained if testing of the aforementioned product(s) is planned to be performed. If no determination has been made, WCD demands that this information be provided immediately after such determination has been made. 5. WCD further demands advanced notice (at least 10 business days) of any intention to remove any portion of the product contents from its container, including any division of 4880-2009-0706v.1 1 of 2 FILED: NEW YORK COUNTY CLERK 03/09/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/09/2023 the remaining product, and demands a third-party neutral be assigned for the division of such product. 6. WCD requests the following with respect to Plaintiffs’ experts’ testing of any such product or sample described in the above Paragraphs: a. Written outline of the testing protocol, including the methods and equipment to be used, as well as the mineral characterization parameters planned to be used, and the b. Opportunity for defendants’ designated representative(s) to be present at any such testing, to observe, and to record and/or photograph Plaintiffs’ experts’ sample preparation and analysis of the product(s). PLEASE TAKE FURTHER NOTICE, that WCD demands that Plaintiffs, Dan Albasry, as Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), undertake the following steps to preserve the tissue evidence in this matter: 7. Preserve any and all tissue samples, slides, and block materials and that Plaintiffs immediately notify WCD with respect to the location of these materials; 8. Preserve any and all radiology materials, including CT scans; 9. Requests that there be no destruction or alteration of pathology materials, including but not limited to tissue samples or biopsy material, as well as any digestive studies; 10. Additionally, WCD requests that Plaintiffs provide immediate notice, at least 48 hours in advance, of any autopsy, and provide WCD’s representative with an opportunity to observe any such procedure. PLEASE TAKE FURTHER NOTICE, that in the event that you should fail to provide the above-requested information within thirty (30) days, a motion shall be made seeking appropriate relief. PLEASE TAKE FURTHER NOTICE that this is a continuing and ongoing demand. Dated: March 9, 2023 LANDMAN CORSI BALLAINE & FORD P.C. By: /s/ Christina J. Holzapfel Christina J, Holzapfel, Esq. Attorneys for Defendant, WHITTAKER, CLARK & DANIELS, INC. One Gateway Center, 22nd Floor Newark, New Jersey 07102 (973) 623-2700 TO: All parties via NYSCEF 2 4880-2009-0706v.1 2 of 2