1999 U.S. Dist. LEXIS 20017, *
PORTER HOLMAN, Plaintiff, -against- ICN PHARMACEUTICALS, INC. and PAUL B. ELDER CO., Defendants.
98 Civ. 0674 (AKH) (HBP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1999 U.S. Dist. LEXIS 20017
December 29, 1999, Decided
December 29, 1999, Filed
DISPOSITION: [*1] ICN's application for a protective order denied.
CASE SUMMARY
PROCEDURAL POSTURE: Defendant sought a protective order precluding plaintiff from deposing its president in a product's liability case on the grounds that defendant's president had no personal knowledge of plaintiff's claims or defendant's defenses.
OVERVIEW: Plaintiff alleged that a drug formerly sold by defendants caused him to develop squamous cell carcinoma in the vicinity of his left eye and to suffer serious and permanent problems with his eyes. Defendant sought a protective order precluding the taking of president's deposition on the grounds that its president had no personal knowledge of plaintiff's claims or defendant's defenses, that he would not be called as a witness at trial, and that any deposition would be unduly burdensome. The court held that although there was serious reason to doubt whether president's deposition would advance discovery on the case, the court could not conclude that president was so completely without knowledge that his deposition should be precluded altogether. The court held that president's testimony concerning the statements made to him by other defendant employees could be admissible against defendant as admission testimony and therefore, the protective order was denied.
OUTCOME: Protective order denied; defendant's president could be deposed because court could not say that president was so completely without knowledge that his deposition should be completely precluded. Also, court held that although statements made by other of defendant's employees might be hearsay, they might also be admissible.
CORE TERMS: deposition, discovery, protective order, declaration, withdraw, personal knowledge, addressing, precluding, duration, resides
LexisNexis(R) Headnotes Hide Headnotes
Civil Procedure > Discovery Methods > Oral Depositions
Civil Procedure > Disclosure & Discovery > Protective Orders
HN1 An order to vacate a notice of taking a deposition is generally regarded as both unusual and unfavorable. More Like This Headnote | Shepardize: Restrict By Headnote
Civil Procedure > Disclosure & Discovery
HN2 Even hearsay is fair ground in discovery. More Like This Headnote
COUNSEL: PORTER HOLMAN, plaintiff, Pro se, New York, NY.
For PORTER HOLMAN, plaintiff: William S. Greenawalt, Meyer, Greenawalt & Wild, LLP, New York, NY.
For ICN PHARMACEUTICALS, INC., defendant: Stephen L. Weinstein, Solovay, Edlin & Eiseman, P.C., New York, NY.
JUDGES: HENRY PITMAN, United States Magistrate Judge.
OPINIONBY: HENRY PITMAN
OPINION: MEMORANDUM OPINION AND ORDER
PITMAN, United States Magistrate Judge:
At a discovery conference held on December 10, 1999, defendant ICN Pharmaceuticals, Inc. ("ICN") moved for a protective order precluding plaintiff from deposing its president, Milan Panic. At that time, I reserved decision pending the receipt of written submissions from the parties addressing the issue. In the ensuing two and one-half weeks, both sides have submitted letter briefs addressing the issue. For the reasons stated below, ICN's application for a protective order precluding the taking of Panic's deposition is denied. I shall, however limit the duration of Panic's deposition to four (4) hours and direct that the deposition be taken in the district in which Panic works or resides.
Although the amended complaint alleges [*2] several theories of liability, this is primarily a product liability action in which plaintiff alleges that Trisoralen, a drug formerly sold by defendants, caused him to develop squamous cell carcinoma in the vicinity of his left eye and to suffer serious and permanent problems with his eyes. Defendants have denied all the material allegations of the amended complaint.
ICN seeks a protective order on the grounds that Panic has no personal knowledge of plaintiff's claims or ICN's defenses, will not be called as a witness at trial and that any deposition would be unduly burdensome given Panic's busy schedule as ICN's chairman and chief executive officer. In support of its application, ICN has submitted a declaration from Panic in which he states he has no recollection of any issues being raised concerning Trisoralen at the time ICN acquired the product, was not involved in filing periodic reports concerning Trisoralen with the FDA and that he has no knowledge of the 1997 worldwide recall of Trisoralen and the decision not to put the product back on the market "other than what was reported to [him] by the ICN personnel who made these decisions." (Declaration of Milan Panic, dated December 17, 1999, at [*3] P 5).
"An HN1order to vacate a notice of taking [a deposition] is generally regarded as both unusual and unfavorable . . . ." Investment Properties Int'l, Ltd. v. IOS, Ltd., 459 F.2d 705, 708 (2d Cir. 1972). Accord Speadmark, Inc. v. Federated Dep't Stores, Inc., 176 F.R.D. 116, 118 (S.D.N.Y. 1997); Naftchi v. New York Univ. Med. Ctr., 172 F.R.D. 130, 132 (S.D.N.Y. 1997); Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., 1993 U.S. Dist. LEXIS 1163, 90 Civ. 7811 (KC), 1993 WL 34678 at *2 (S.D.N.Y. Feb. 4, 1993); Polycast Tech. Corp. v. Uniroyal, Inc., 1990 U.S. Dist. LEXIS 12444, 87 Civ. 3297 (CSH), 1990 WL 138968 at *3 (S.D.N.Y. Sept. 20, 1990). Although there is serious reason to doubt (1) whether Panic's deposition will advance discovery on the case, and (2) whether taking Panic's deposition in California is the most prudent and economical way for an individual plaintiff to spend his litigation budget, I cannot conclude that Panic is so completely without knowledge that his depositions should be precluded altogether. Panic's declaration states that he was informed about the decision to withdraw Trisoralen from the market by the individuals at ICN [*4] who made the decision; based on the current state of the record, I cannot conclude that this decision has no relevance to plaintiff's claims. In addition, the fact that Panic may have no personal knowledge of the decision to withdraw Trisoralen and knows only what he was told by others does not affect the appropriateness of taking his deposition. Naftchi v. New York Univ. Med. Ctr., supra, 172 F.R.D. at 132-33. HN2Even hearsay is fair ground in discovery. See Litton Systems, Inc. v. Am. Tel. & Tel. Co., 700 F.2d 785, 827 (2d Cir. 1983). Moreover, Panic's testimony concerning the statements made to him by other ICN employees may well be admissible against ICN as admission testimony. Fed. R. Evid. 801(d)(2).
Accordingly, ICN's application for a protective order is denied. However, Panic's deposition is limited to four hours duration (exclusive of recesses) and shall be conducted in either the district wherein Panic resides or the district in which he works. Counsel are reminded that I have previously denied plaintiff's application to compel discovery concerning ICN's alleged withholding of information from share holders regarding other medications, finding [*5] that such discovery was irrelevant even under the liberal standard applicable to discovery proceedings. That ruling obviously applies to the Panic deposition and to all remaining discovery proceedings.
Dated: New York, New York
December 29, 1999
SO ORDERED
HENRY PITMAN
United States Magistrate Judge