IN RE: JOHNSON & JOHNSON et al. (2024)

Order, Supreme Court, New York County (Adam Silvera, J.), entered June 21, 2024, which denied the petition to enforce an out-of-state subpoena dated March 14, 2024, under index No. 153527/24, unanimously reversed, on the law, facts and in the exercise of discretion, without costs, and the petition granted.  Order, same court and Justice, entered same date, which, under index No. 153220/24, insofar as appealed from as limited by the briefs, granted the petition to quash and denied the cross-petition to enforce an out-of-state subpoena dated March 14, 2024, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the petition denied and the cross-petition granted.

The information sought by the subpoenas – i.e., the identities of the subjects of two scholarly articles concerning the link between cosmetic talcum powder products and mesothelioma – is clearly relevant to the underlying New Jersey personal injury action.  It goes directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an expert until she voluntarily withdrew (see Bell v. American Intl. Indus., 627 F.Supp.3d 520, 524–525, 529–532 [M.D.N.C. 2022]).

The information sought by the subpoenas is not protected from disclosure by HIPAA's privacy rule, which does not apply where, as here, the health care providers did not provide physician services in connection with the articles and the subjects were never their patients (see 45 CFR 160.103;  Miller v. Allstate Fire & Cas. Ins. Co., 2009 WL 700142, *3–4, 2009 U.S. Dist. LEXIS 21225, *8 [W.D.Pa., Mar. 17, 2009, Civil No. 07–260];  Matter of Asbestos Prods. Liab. Litig., 256 F.R.D. 151, 155 [E.D. Pa. 2009]).

The information sought by the subpoenas is also not protected from disclosure by the federal Common Rule because the articles to which they relate fall within the exemption for secondary research based on publicly available identifiable private information or biospecimens (see 45 CFR 46.104[d][4][i];  82 Fed Reg 7149, 7194).  The burden was on the party opposing the subpoenas to prove that this information was produced in the underlying litigations subject to a protective order (see Matter of Kapon v. Koch, 23 N.Y.3d 32, 39, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014]).  Neither party opposing disclosure of the information has offered any such proof.

Production of the information sought by the subpoenas would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research.  The subject information consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers.  Moreover, the subjects never actually agreed to participate in any research, having released their information in connection with public litigation, and so it is unclear how allowing disclosure of their identities might deter future research participation (see Bell, 627 F. Supp. 3d at 536).

We have considered plaintiff's remaining arguments and find them unavailing.