NYCAL Court Permits Discovery of Non-Party Co-Author of Article Analyzing Verdicts in Association with Consolidated Trials Supreme Court of New York, New York County, January 12, 2016
In this NYCAL case, Justice Peter Moulton denied the defendants’ motion seeking to quash a subpoena served by Weitz & Luxenberg P.C. upon Mr. Marc Scarcella of Bates, White LLC, an economic consulting firm. Mr. Scarcella co-authored an article entitled, “The Consolidation Effect: New York City Asbestos Verdicts, Due Process and Judicial Economy.” In summary, the article analyzed verdicts in association with consolidated trials in NYCAL.
In denying the motion to quash, the court began its opinion by noting that the Defendants “concede[d] that [the witness] has from time to time served as an expert witness in NYCAL, but not as an expert in connection with the article” and that the article “has been invoked by defendants in NYCAL in opposition to consolidation motions.” See Opinion at p. 1. The court determined that the defendants “failed to carry [their] burden” to show that the discovery would be futile “of the process to uncover anything legitimate.” Id, at p. 3. In denying the motion, the court mainly pointed to the defendants’ repeated invocation of the article in opposition to motions for consolidated trials and with respect to improvements to the CMO. The court further rejected various procedural defects associated with the subpoena and directed that the deposition “commence on or before February 11, 2016.” Id., at 5.