On August 10, 2018 a
Motion-Secondary
was filed
involving a dispute between
Sinar Seen
Individually And As Administrator Of The Estate Of Munir Seen, Deceased,
and
84 Lumber Company,
Aerco International, Inc.,
Algoma Hardwoods, Inc.,
Benjamin Moore & Company,
Bmce Inc., In Itself And As Successor To United Centrifugal Pump Co.,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Conwed Corporation,
Crane Co.,
Dap, Inc. N K A La Mirada Products, Inc.,
Foster Wheeler Energy Corporation,
General Electric Company,
Industrial Holdings Corporation F K A The Carborundum Company,
Ingersoll-Rand Company,
Ipa Systems, Inc.,
John Crane Inc.,
John Doe 1 Through John Doe 75,
Kaiser Gypsum Company, Inc.,
Kelly Moore Paint Company Inc.,
Mario & Dibono Fireproofing Corp.,
Mario & Dibono Plastering Co. Inc.,
Mckesson Corporation,
Metropolitan Life Insurance Company,
Pfizer, Inc.,
Sherwin-Williams Automotive Finishes Corporation,
Simpson Timber Company,
Tishman Construction Company,
Turner Construction Company,
Union Carbide Corporation,
U.S. Plywood A K A International Paper Company,
Weyerhaeuser Company,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018
NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
---------------------------------------------------------------------x
IN RE: NEW YORK CITY ABESTOS LITIGATION
---------------------------------------------------------------------x
SINAR SEEN, Individually and as Administrator of Index No.: 190225/2018
the Estate of MUNIR SEEN, Deceased,
Hon. Manuel J. Mendez
Plaintiff,
-against-
Affirmation in Support of
McKesson's Motion to Quash
84 LUMBER COMPANY, et al.,
including McKesson Corporation,
Defendants.
----------------------------------------------------------------------x
DAVID P. SCHAFFER, an attorney duly admitted to practice before the courts of this State,
under the penalties of perjury pursuant to CPLR §2106, affirms the following to be true:
1. I am a partner with the law firm Malaby & Bradley, LLC., counsel for non-party
McKesson Corporation (hereinafter as "McKesson"). I am fully familiar with the facts and
circumstances set forth herein.
2. I make this affirmation in support of McKesson's motion to quash the trial
subpoena served by co-defendant IP A Systems, Inc. (hereinafter as "IP A") on or about
December 19, 2020 seeking testimony from McKesson's corporate representative, on the
grounds the subpoena is contrary to the New York City Asbestos Litigation Case Management
Order (dated June 20, 2017) and wasteful, is facially defective for failing to state its underlying
purpose and creates a chilling effect on parties willing to settle, is an improper fishing expedition
and overly broad, and on any other grounds raised in any motions to quash and/or for protective
orders filed in this case.
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FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018
NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020
3. No previous application has been made to any court or judge for the relief sought
herein.
4. This matter is an asbestos-related personal injury action with a trial date of
February 4, 2020 before this court. It is part of the April, 2019 Extremis Cluster. In this case,
Plaintiff alleged exposure to asbestos from McKesson's products within the period of 1967 to
1979.
5. McKesson is a former defendant in this matter and settled for consideration with
Plaintiff on January 30, 2020. Accordingly, McKesson is a non-party in this matter. A copy of
the redacted settlement letter is attached hereto as Exhibit 1.
6. On or about December 19, 2019, IPA served a New York trial subpoena,
returnable February 4, 2020, and at any recessed or adjourned date, with an accompanying cover
letter, upon McKesson. IPA's subpoena seeks testimony and evidence from McKesson's
corporate representative on seven specific areas, notably the seventh area states "[a]ll other
matters relevant to this action," and requests nine categories of documents. A copy ofIPA's
subpoena with an accompanying cover letter is attached hereto as Exhibit 2.
7. The June 20, 2017 NYCAL Case Management Order cited in the Memorandum in
Support of McKesson's motion to quash is attached as Exhibit 3 to the currently pending motion
to quash filed by non-defendant Union Carbide Corporation on January 28, 2020 and
incorporated by reference herein for the sake of brevity herein as Exhibit 3.
8. The cases cited in the Memorandum in Support of McKesson's Motion to Quash
are attached as Exhibits to the currently pending motion to quash filed by non-defendant Union
Carbide Corporation on January 28, 2020 and for the sake of brevity are collectively
incorporated by referenced herein as Exhibit 4.
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FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018
NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020
A. Carilli, 2017 WL 4422587, at *4, 2017 N.Y. Slip Op. 32100(U) (Sup. Ct., N.Y.
County, Oct. 3, 2017).
B. Schwartz v. A.O. Smith Prods., Inc., No. 190199/2015, 2017 N.Y. Slip Ops.
32244(U) (Sup. Ct., N.Y. County, Oct. 23, 2017).
C. In Re: New York City Asbestos Litig., No. 782000/2017, at *23 (Sup. Ct., N.Y
County, June 20, 2017)).
D. Gallen v. Aerco Int 'l, Inc., No. 190343/2015, 2017 N. Y Slip Op. 32155(U) (Sup.
Ct., N.Y County, Oct. 12, 2017).
E. Carilli v. A. 0. Smith Water Prods. Co., No. 190252/2015, 2017 N.Y Slip Op.
32154(U) (Sup. Ct., N.Y County, Oct. 12, 2017).
F. Accord DeStafano v. MT Health Clubs, 220 A.D.3d 331 (1st Dep't 1995).
G. Matter of Kapon v. Koch, 23 N.Y.3d 32, 39 (2014).
H. McGlynn v. AERCO International, Inc. et.al. (Sup. Ct. N.Y. County, August 14,
2017, Index No. 190219/2016).
I. Mestel Co. v. Smythe Masterson & Judd, 215 AD 2d 329, 330, 627 NYS 2d 37
(1st Dep't 1995).
J. Matter of Terry D., 81 N.Y.2d 1042, 1044 (1993).
K. Bour v. 259 Bleeker LLC, 104 A.D.3d 454 (1st Dep't. 2013).
L. Evans v 3M Company, et al., (Sup. Ct. N.Y. County, May 2, 2017, Index No.
190109/2015),
M. Gallen v.AERCO International Inc., et. al. (Sup. Ct. N.Y. County, September 28,
2017, Index No. 190343/2015).
N. Snowdale v. A.O. Smith Water Products, et. al., (Sup. Ct. N.Y. County, October 5,
2017, Index No. 190202/2015).
8. The accompanying memorandum oflaw sets forth the full legal arguments as to
why IPA's trial subpoena to McKesson must be quashed and/or a protective order issued.
9. Your affirmant, by email dated February 3, 2020, corresponded with counsel for
IPA (Gary Casimir, Esq.), advised of McKesson's resolution of the case, and requested that the
subpoena be immediately withdrawn, in a "good faith effort" to avoid the necessity of filing a
motion to quash. Counsel for IP A responded that IPA ""cannot 'immediately' grant your
request."
10. Your affirmant, before this Honorable Court at a pretrial conference held on this
matter on February 4, 2020, reiterated its request that the subpoena be withdrawn in a further
"good faith" attempt to avoid motion practice. The subpoena has not been withdrawn to date.
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FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018
NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020
Dated: New York, New York
February 11, 2020
Respectfully submitted,
Malaby & Bradley, LLC.
By: -2-+-4----
David P.
~~,,,___~_-
! !_____,,.._-
Schaffer, Esq.
Malaby & Bradley
Attorneys.for Non-Party McKesson Corp.
150 Broadway, 6th Floor
New York, New York 10038
(212) 791-0285
{00143124.} 4
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Preview
FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ---------------------------------------------------------------------x IN RE: NEW YORK CITY ABESTOS LITIGATION ---------------------------------------------------------------------x SINAR SEEN, Individually and as Administrator of Index No.: 190225/2018 the Estate of MUNIR SEEN, Deceased, Hon. Manuel J. Mendez Plaintiff, -against- Affirmation in Support of McKesson's Motion to Quash 84 LUMBER COMPANY, et al., including McKesson Corporation, Defendants. ----------------------------------------------------------------------x DAVID P. SCHAFFER, an attorney duly admitted to practice before the courts of this State, under the penalties of perjury pursuant to CPLR §2106, affirms the following to be true: 1. I am a partner with the law firm Malaby & Bradley, LLC., counsel for non-party McKesson Corporation (hereinafter as "McKesson"). I am fully familiar with the facts and circumstances set forth herein. 2. I make this affirmation in support of McKesson's motion to quash the trial subpoena served by co-defendant IP A Systems, Inc. (hereinafter as "IP A") on or about December 19, 2020 seeking testimony from McKesson's corporate representative, on the grounds the subpoena is contrary to the New York City Asbestos Litigation Case Management Order (dated June 20, 2017) and wasteful, is facially defective for failing to state its underlying purpose and creates a chilling effect on parties willing to settle, is an improper fishing expedition and overly broad, and on any other grounds raised in any motions to quash and/or for protective orders filed in this case. {00143124.} 1 1 of 4 FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020 3. No previous application has been made to any court or judge for the relief sought herein. 4. This matter is an asbestos-related personal injury action with a trial date of February 4, 2020 before this court. It is part of the April, 2019 Extremis Cluster. In this case, Plaintiff alleged exposure to asbestos from McKesson's products within the period of 1967 to 1979. 5. McKesson is a former defendant in this matter and settled for consideration with Plaintiff on January 30, 2020. Accordingly, McKesson is a non-party in this matter. A copy of the redacted settlement letter is attached hereto as Exhibit 1. 6. On or about December 19, 2019, IPA served a New York trial subpoena, returnable February 4, 2020, and at any recessed or adjourned date, with an accompanying cover letter, upon McKesson. IPA's subpoena seeks testimony and evidence from McKesson's corporate representative on seven specific areas, notably the seventh area states "[a]ll other matters relevant to this action," and requests nine categories of documents. A copy ofIPA's subpoena with an accompanying cover letter is attached hereto as Exhibit 2. 7. The June 20, 2017 NYCAL Case Management Order cited in the Memorandum in Support of McKesson's motion to quash is attached as Exhibit 3 to the currently pending motion to quash filed by non-defendant Union Carbide Corporation on January 28, 2020 and incorporated by reference herein for the sake of brevity herein as Exhibit 3. 8. The cases cited in the Memorandum in Support of McKesson's Motion to Quash are attached as Exhibits to the currently pending motion to quash filed by non-defendant Union Carbide Corporation on January 28, 2020 and for the sake of brevity are collectively incorporated by referenced herein as Exhibit 4. {00143124.} 2 2 of 4 FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020 A. Carilli, 2017 WL 4422587, at *4, 2017 N.Y. Slip Op. 32100(U) (Sup. Ct., N.Y. County, Oct. 3, 2017). B. Schwartz v. A.O. Smith Prods., Inc., No. 190199/2015, 2017 N.Y. Slip Ops. 32244(U) (Sup. Ct., N.Y. County, Oct. 23, 2017). C. In Re: New York City Asbestos Litig., No. 782000/2017, at *23 (Sup. Ct., N.Y County, June 20, 2017)). D. Gallen v. Aerco Int 'l, Inc., No. 190343/2015, 2017 N. Y Slip Op. 32155(U) (Sup. Ct., N.Y County, Oct. 12, 2017). E. Carilli v. A. 0. Smith Water Prods. Co., No. 190252/2015, 2017 N.Y Slip Op. 32154(U) (Sup. Ct., N.Y County, Oct. 12, 2017). F. Accord DeStafano v. MT Health Clubs, 220 A.D.3d 331 (1st Dep't 1995). G. Matter of Kapon v. Koch, 23 N.Y.3d 32, 39 (2014). H. McGlynn v. AERCO International, Inc. et.al. (Sup. Ct. N.Y. County, August 14, 2017, Index No. 190219/2016). I. Mestel Co. v. Smythe Masterson & Judd, 215 AD 2d 329, 330, 627 NYS 2d 37 (1st Dep't 1995). J. Matter of Terry D., 81 N.Y.2d 1042, 1044 (1993). K. Bour v. 259 Bleeker LLC, 104 A.D.3d 454 (1st Dep't. 2013). L. Evans v 3M Company, et al., (Sup. Ct. N.Y. County, May 2, 2017, Index No. 190109/2015), M. Gallen v.AERCO International Inc., et. al. (Sup. Ct. N.Y. County, September 28, 2017, Index No. 190343/2015). N. Snowdale v. A.O. Smith Water Products, et. al., (Sup. Ct. N.Y. County, October 5, 2017, Index No. 190202/2015). 8. The accompanying memorandum oflaw sets forth the full legal arguments as to why IPA's trial subpoena to McKesson must be quashed and/or a protective order issued. 9. Your affirmant, by email dated February 3, 2020, corresponded with counsel for IPA (Gary Casimir, Esq.), advised of McKesson's resolution of the case, and requested that the subpoena be immediately withdrawn, in a "good faith effort" to avoid the necessity of filing a motion to quash. Counsel for IP A responded that IPA ""cannot 'immediately' grant your request." 10. Your affirmant, before this Honorable Court at a pretrial conference held on this matter on February 4, 2020, reiterated its request that the subpoena be withdrawn in a further "good faith" attempt to avoid motion practice. The subpoena has not been withdrawn to date. {00143124.} 3 3 of 4 FILED: NEW YORK COUNTY CLERK 02/11/2020 01:30 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 404 RECEIVED NYSCEF: 02/11/2020 Dated: New York, New York February 11, 2020 Respectfully submitted, Malaby & Bradley, LLC. By: -2-+-4---- David P. ~~,,,___~_- ! !_____,,.._- Schaffer, Esq. Malaby & Bradley Attorneys.for Non-Party McKesson Corp. 150 Broadway, 6th Floor New York, New York 10038 (212) 791-0285 {00143124.} 4 4 of 4