Perrotte v. Eli Lilly & Co.

171 A.D.2d 119, 575 N.Y.S.2d 19, 1991 N.Y. App. Div. LEXIS 12986
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 15, 1991
StatusPublished
Cited by14 cases

This text of 171 A.D.2d 119 (Perrotte v. Eli Lilly & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perrotte v. Eli Lilly & Co., 171 A.D.2d 119, 575 N.Y.S.2d 19, 1991 N.Y. App. Div. LEXIS 12986 (N.Y. Ct. App. 1991).

Opinion

OPINION OF THE COURT

Sullivan, J. P.

This action to recover for personal injuries sustained by plaintiff Margaret Perrotte as a result of her mother’s ingestion of the drug diethylstilbestrol (DES) during the pregnancy that resulted in plaintiff’s birth in 1962, one of over 400 similar actions filed against DES manufacturers, was originally commenced against five pharmaceutical manufacturers, four of which have settled with plaintiffs and are no longer in the case. Only Eli Lilly and Company, which plaintiffs now contend is the manufacturer of the DES ingested by the mother, remains in the action.

According to plaintiffs, the drug was purchased at Lynn’s [121]*121Drug Store in Owego, New York, the records of which are no longer in existence. Nor is anyone alive today who worked at Lynn’s during the relevant period. After filing a notice identifying Lilly as the manufacturer of the DES ingested by plaintiffs mother, plaintiffs noticed the depositions of the custodian of records of a nonparty, McKesson Corporation, and a long-time employee in its Buffalo office, Angie Ferrentino. Their testimony was sought on the basis of facts showing that during the period plaintiff’s mother was carrying her in 1962 the wholesaler supplying Lynn’s was McKesson’s Syracuse distribution center, which closed some 10 years ago. Plaintiffs seek to depose Ferrentino in the belief she has knowledge of McKesson’s practice, for the years 1953 to 1962, of supplying Lilly DES if DES was, as claimed, ordered generically. The instant appeal arises out of the grant of a motion for a protective order quashing the two subpoenas by which these depositions were sought to be compelled. Also at issue is the subsequent and related rescission of a previously ordered commission authorizing plaintiffs to take the deposition of a nonparty witness, a pharmacist, in Pennsylvania.

Before seeking the McKesson depositions, plaintiffs had already deposed Robert Bovier, a pharmacist who began working at Lynn’s in 1965. He testified that "[a]t one time, Lilly brand was automatically supplied by the wholesaler if you ordered a generic product.” Bovier testified that Lynn’s primarily used McKallor in Binghamton and McKesson in Syracuse as its wholesalers. Plaintiffs also deposed Richard Lynn, the grandson of the founder of Lynn’s, who did not begin to work at the drugstore until early 1969 and who knew nothing of Lynn’s stocking or dispensing practices during the relevant period. He did, however, confirm that McKesson in Syracuse was one of its primary wholesalers. He also testified that between 1969 and 1979 a "good percentage” of Lynn’s pharmaceuticals were purchased directly from the manufacturer, not a wholesaler. In his deposition, Charles J. Bernas, a former Lilly salesman who had serviced Lynn’s from 1959 to 1969, confirmed that Lynn’s used McKallor in Binghamton or McKesson in Syracuse as its wholesaler.

In her affidavit in support of the motion to quash, Ms. Ferrentino, a 40-year employee at McKesson’s Buffalo distribution center, stated that she was aware of a practice there by which a DES order which did not specify a manufacturer would be filled with DES manufactured by Lilly. She, however, knew nothing of the practices followed at McKesson in [122]*122Syracuse or at any other distribution center. In his affidavit, Joseph E. Polastri, the current president of McKesson’s Distribution Group, aside from attesting to the lack of any records from the defunct Syracuse distribution center indicating whether Lynn’s was one of its customers, stated that each McKesson center had its own purchasing, warehousing and selling practices.

In opposition to the motion, plaintiffs asserted that an agreement existed between Lilly and McKesson requiring the latter to sell only Lilly products to pharmacies ordering a drug by its generic name. Lilly’s counsel conceded the existence of such an agreement but claimed that it terminated in 1961. Plaintiffs argued that Ms. Ferrentino’s testimony concerning the practices of McKesson, which marketed on a national scale, in Buffalo would be relevant since it could provide a permissible basis for a jury to infer that such a practice was in existence at its other distribution centers in 1962. Plaintiffs indicated that although the physician who treated her mother in 1962 was dead they had 120 unrelated prescriptions written by him ordering DES by its generic name, diethylstilbestrol. Moreover, plaintiffs alleged, plaintiff’s mother would testify that between 1954 and 1966 she never varied her practice of having her prescriptions filled at Lynn’s.

In opposing the motion, plaintiffs also cited a brief excerpt from Bovier’s deposition:

"Q. Since you were at Lynn’s in June 1965, do you recall any instances of ordering pharmaceuticals, asking for DES under Lilly’s brandnames or Upjohn’s brandname?
"A. At one time, Lilly brand was automatically supplied by the wholesaler if you ordered a generic product.
"Q. Was this from June of '65 or until sometime after?
"A. I do not know what the time frame was.
"Q. Was it while you were at Lynn’s?
"A. I would say yes.”

The IAS court justified its vacatur of the subpoenas by ruling that evidence of what occurred in Buffalo would not be admissible to show the existence of a practice in Syracuse. The court also vacated its previously issued commission authorizing the deposition of a pharmacist in Pennsylvania on the issue of McKesson’s custom and practice in filling orders for generic drugs. We reverse.

Pursuant to CPLR 3101 (a), "There shall be full disclosure [123]*123of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof’. With respect to a nonparty, the scope of disclosure is the same — "all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof * * * upon notice stating the circumstances or reasons such disclosure is sought or required.” (CPLR 3101 [a] [4].) While materiality and necessity obviously place some limits on the scope of disclosure, disclosure should be permitted as long as the information sought bears on the controversy and will assist in the preparation for trial; the ultimate test is one of " 'usefulness and reason’ ” (O’Neill v Oakgrove Constr., 71 NY2d 521, 526; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). Thus, pretrial disclosure extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof. (Fell v Presbyterian Hosp., 98 AD2d 624, 625.)

In Villano v Conde Nast Publs. (46 AD2d 118, 120), this court cited with approval a Fourth Department case (Kenford Co. v County of Erie, 41 AD2d 586) holding that disclosure by a nonparty witness under State practice should be as broad as in the Federal courts. (See also, Slabakis v Drizin, 107 AD2d 45, 46.) In holding that the barrier to the deposition of a nonparty witness created by CPLR 3101 (a) (4) is "truly a nominal one” (Villano v Conde Nast Publs., supra, at 120), this court quoted the Fourth Department standard, " 'A mere showing by the lawyer that he needs such witness’s pretrial deposition in order to prepare fully for the trial should suffice as a "special circumstance.” ’ ”

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Bluebook (online)
171 A.D.2d 119, 575 N.Y.S.2d 19, 1991 N.Y. App. Div. LEXIS 12986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perrotte-v-eli-lilly-co-nyappdiv-1991.