Brian Joseph Gref v. American International Industries

Background

Brian Joseph Gref alleged that lifelong use of talcum-powder products exposed him to asbestos and caused peritoneal mesothelioma. He retained Dr. Jacqueline Moline as an expert witness. Dr. Moline’s expert report relied in part on a January 2020 peer-reviewed article she coauthored about 33 people who developed mesothelioma after using cosmetic talcum powder. The article stated that the individuals had no known asbestos exposure other than prolonged talcum-powder use, and it did not identify them.

AII served a subpoena on Northwell Health, Inc., seeking documents related to the article, including the identities of the 33 individuals. Northwell asked the court to modify the subpoena to prevent disclosure of the subjects’ identities. Before the court ruled on that request, Gref withdrew Dr. Moline’s reliance on the article in this case.

The opinion discussed an earlier related proceeding in which AII obtained information confirming that Betty Bell was one of the 33 individuals. The court in that proceeding vacated a protective order, reasoning that Bell’s employment history and workers’ compensation claims suggested a possible occupational asbestos exposure that could affect the article’s credibility.

Gref’s Sanctions Motion

Gref moved for sanctions against AII under the court’s inherent power and relied on Federal Rule of Civil Procedure 26(g). He argued that AII pursued the discovery in bad faith based on the false premise that Bell had occupational asbestos exposure. Gref relied on deposition testimony from AII experts Dr. Allan Feingold and Dr. Kenneth Mundt in another case, which Gref argued showed that Bell had no known occupational asbestos exposure.

The court explained that sanctions under its inherent power require clear evidence that the challenged conduct had no legal or factual basis and was motivated by an improper purpose, such as harassment or delay. The court also explained that Rule 26(g) requires attorneys to certify that discovery requests are consistent with the procedural rules and existing law, not made for an improper purpose, and reasonable under the circumstances.

Court’s Analysis

Judge Figueredo concluded that Gref had not shown AII lacked a colorable, meaning legally and factually supportable, basis for seeking the identities of the study subjects. The earlier related proceeding identified evidence of Bell’s possible occupational asbestos exposure, including her workers’ compensation claims and expert opinions that her work history could have involved such exposure. The court stated that a possible exposure, even without conclusive proof, could undermine the weight given to Dr. Moline’s findings and therefore support AII’s discovery request.

The court also found that the testimony Gref cited from Dr. Feingold and Dr. Mundt did not contradict their earlier opinions or establish that AII acted in bad faith. The testimony indicated uncertainty about whether Bell had significant occupational exposure, not that occupational exposure could be ruled out. The court further stated that disagreements over AII’s litigation tactics and the scheduling of Dr. Feingold’s deposition did not establish that AII’s subpoena was baseless or issued for an improper purpose.

Disposition

The court denied Gref’s motion for sanctions. The Clerk of Court was directed to terminate the motions listed at ECF Nos. 346 and 348.