IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KIMBERLEE WILLIAMS, et al.

 

 Plaintiffs,

 vs.

BASF CATALYSTS LLC, et al.

 

 Defendants.

No. 2:11-cv-01754 (JLL) (JAD)

CIVIL ACTION

FOX ROTHSCHILD LLP

Jeffrey M. Pollock, Esq.

Princeton Pike Corporate Center

997 Lenox Drive, Building 3

Lawrenceville, NJ 08648

(Tel): (609) 896-3600

(Fax): (609) 896-1469

Dated: April 30, 2018 

COHEN, PLACITELLA & ROTH, P.C.

Christopher M. Placitella, Esq. 

Michael Coren, Esq. 

Jared M. Placitella, Esq.

Eric S. Pasternack, Esq.

127 Maple Ave

Red Bank, New Jersey 07701

(Tel): (732) 747-9003

(Fax): (732) 747-9004

Attorneys for Plaintiffs and the 

Proposed Class

PLAINTIFFS’ MEMORANDUM OF LAW

IN SUPPORT OF THE MOTION TO STAY THE IMPLEMENTATION 

OF THE SCIENCE DAY ORDER (CM/ECF # 485)

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TABLE OF CONTENTS

I. PRELIMINARY STATEMENT .....................................................................1

II. STATEMENT OF THE CASE RELEVANT TO THE SCIENCE DAY 

ORDER ......................................................................................................................6

III. STANDARD OF REVIEW............................................................................14

IV. ARGUMENT..................................................................................................15

A. Plaintiffs will prove that the unprecedented Science Day Order is clearly 

erroneous and contrary to the law........................................................................17

1. Because a science tutorial is not evidence, a Science Day would neither be 

useful nor necessary to the resolution of Plaintiffs’ crime-fraud motion and 

invites potential overstepping by the Special Discovery Master of his authority 

and role under CM/ECF # 335..........................................................................17

2. The Special Discovery Master can resolve the crime-fraud motion without 

weighing in on the science of asbestos testing..................................................22

3. The Special Discovery Master should review the documents at issue to 

determine if those documents and the evidence placing the documents in 

context establish the applicability of the crime-fraud exception. .....................24

B. Plaintiffs will suffer irreparable harm if this request for a stay pending 

appeal is not granted. ...........................................................................................26

C. Granting a stay pending appeal would not injure any of the parties...........28

D. The grant of a stay pending appeal will not harm the public interest. ........28

V. CONCLUSION.................................................................................................29

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TABLE OF AUTHORITIES

Cases

Alliance to End Repression v. Rochford, 

75 F.R.D. 441 (N.C. Ill. 1977)..............................................................................28

Ascion, LLC v. Tempur Sealy Int’l, Inc., 

No. 15-12067, 2017 U.S. Dist. LEXIS 169279 (S.D. Mich. Oct. 13, 2017) .......18

AT&T Corp. v. Pub. Serv. Enter., Inc., 

Civil Action No. 99-4975, 2000 U.S. Dist. LEXIS 4649 

(E.D. Pa. Apr. 12, 2000)................................................................................ 15, 30

Best Med. Int’l, Inc. v. Accuray, Inc., 

No. 10-1043, 2012 U.S. Dist. LEXIS 184490 (W.D. Pa. 2012)..........................18

Caldwell v. District Court, 

644 P.2d 26 (Colo. 1982) .....................................................................................27

Cost Bros., Inc. v. Travelers Indem. Co., 

760 F.2d 58 (3d Cir. 1985)...................................................................................14

Effective Exploration, LLC v. Pa. Land Holdings Co., 

Civil Action No. 14-00845, 2015 U.S. Dist. LEXIS 111504 (W.D. Pa. 2015)...18

Hilton v. Braunskill, 

481 U.S. 770 (1987) .............................................................................................15

In re Chevron Corp., 

633 F.3d 153 (3d Cir. 2011).......................................................................... 17, 27

In re Pharmaceutical Industry Average Wholesale Price Litig., 

230 F.R.D. 61 (D. Mass. 2005) ............................................................................18

Robertson v. Allied Signal, Inc., 

914 F.2d 360 (3d Cir. 1990).................................................................... 23, 24, 25

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St. Charles Hosp. & Rehab. Ctr. v. Mylan Labs, 

208 F.R.D. 1 (D.D.C. 2002) .................................................................................28

United States v. Nutrition Serv., Inc., 

234 F. Supp. 578 (W.D.Pa 1964) .........................................................................30

United States v. Zolin, 

491 U.S. 554 (1989) .............................................................................................26

Williams v. BASF Catalysts LLC, 

765 F.3d 306 (3d. Cir. 2014)............................................................................6, 22

Williams v. BASF Catalysts LLC, 

Civil Action No. 11-1754, 2016 U.S. Dist. LEXIS 46273 (D.N.J. Apr. 5, 2016). 2

Rules

Fed. R. Civ. P. 1................................................................................................ 15, 29

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I. PRELIMINARY STATEMENT

Plaintiffs’ respectfully request emergent relief in the form of an order

staying the implementation of the Special Discovery Master’ April 23, 2018 Order, 

scheduling a “Science Day evidentiary hearing” for May 2, 2018, (Exhibit 1, 

CM/ECF # 485) (the Science Day Order), relating to Plaintiffs’ pending-motion to 

determine the applicability of the crime-fraud motion to BASF’s claim of attorneyclient privilege. (Exhibits 2, 3, 4). The Special Discovery Master’s Order is 

contrary to the law governing this case, imposes unjust burdens on Plaintiffs that 

are impossible to comply with, and is unprecedented in more than 50 years of 

asbestos litigation nationwide.

Ruling that the parties must take part in an elaborate, unprecedented Science 

Day evidentiary proceeding, the Hon. Justice Roberto Rivera-Soto, J. (ret.), the 

Court’s Special Discovery Master (“SDM”), directed the parties to exchange 

reports of experts by April 30, 2018, just 5 business days after the issuance of the 

Science Day Order, and then have those experts testify just two days later on the 

following issues:

(a) the overall testing record concerning Emtal talc to determine 

whether and to what extent it contained asbestos;

(b) the relevant capabilities and limitations of the testing methods then 

used by BASF (and its predecessors) and others to determine whether 

and to what extent the Emtal talc was contaminated with asbestos;

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(c) the conclusions, if any, reached by government investigators, thirdparty analysts, and others regarding whether and to what extent the 

Emtal talc was contaminated with asbestos; and, 

(d) the results of any more recent testing of Emtal talc samples[.]

Plaintiffs object to this elaborate, disruptive and costly Science Day 

proceeding and are preparing to timely appeal the Order to this Court as is their 

right. However, the exchange of testimony and the hearing itself as required by the 

Science Day Order in the middle of the appeal period render moot Plaintiffs’ right 

of appeal. Plaintiffs promptly informed the Special Discovery Master of their 

intention to appeal his Order and requested that he stay it to permit an orderly 

appeal process. On April 25, 2018 the Special Discovery Master denied Plaintiffs’

request for a stay. (Exhibit 18, CM/ECF # 491). Plaintiffs now ask this Court for a 

stay so that they may perfect their appeal of the Science Day Order.

The Science Day proceeding as ordered is objectionable and prejudicial to 

Plaintiffs for several reasons. As this Court has recognized, “[t]his action is not 

itself an asbestos injury case,” to be re-opened and tried as such decades after the 

underlying cases were dismissed as a result of Defendants’ actions in courts around 

the country. Williams v. BASF Catalysts LLC, Civil Action No. 11-1754, 2016 U.S. 

Dist. LEXIS 46273, *56 (D.N.J. Apr. 5, 2016). Science Day is thus unnecessary 

because the scientific questions posed have no bearing upon the resolution of the 

crime-fraud motion in the circumstances of this case. The central issue in this class 

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action is whether BASF Catalysts LLC, formerly known as Engelhard Corporation 

(“BASF”), and its national asbestos defense counsel, Cahill Gordon & Reindel 

(“Cahill”), conspired to deceive some 16,000 putative Class Members who brought

asbestos claims against BASF. All members of the proposed Class throughout the 

course of Defendants’ conspiracy were: (1) lied to regarding the existence of 

asbestos in the talc; and (2) were injured by Defendants’ deceit by either 

voluntarily dismissing their cases without receiving fair and adequate consideration 

or suffering an involuntary dismissal when they could not prove the most 

fundamental liability element that the talc contained asbestos. To determine the 

crime-fraud issue, the Court should not delve into the question of whether the 

positive test results were sufficient to sustain Plaintiffs’ underlying claims. The 

only question is whether the company and its lawyers concealed and lied about the 

existence of positive asbestos test results. 

Defendants defended Emtal asbestos injury lawsuits with three interrelated 

falsehoods: (1) there was no asbestos in Emtal talc; (2) there was no evidence that

Emtal talc contained asbestos; and (3) no Engelhard employee had ever testified 

that there was asbestos in the talc. In addition, shortly following the settlement of 

the Westfall mesothelioma case in 1984, the company gathered up and either 

discarded or secreted away documents harmful to its defense of subsequent 

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asbestos actions, which in the late 1980s began to pour in.1 Neither these lies nor 

the suppression of evidence requires expert testimony to understand and similar 

requests by BASF for a Science Day proceeding have been uniformly denied by 

this Court previously and others as being unnecessary. 

Second, preparing expert reports, when fact discovery is not even concluded,

will alone take weeks, not days.2Justice here cannot be determined in haste, but 

rather with the opportunity for both sides to be heard in a meaningful manner and 

time. Moreover, when asked and informed about the April 30 report deadline and 

the May 2 “evidentiary hearing” as set forth in the Science Day Order, Plaintiffs’ 

consulting expert on mineralogy and testing materials for asbestos advised that he 

could not prepare a report on such short notice and was not available to testify on 

the ordered date, and that even if he were available, could not be ready to testify on 

the topics by then. See Declaration of Christopher M. Placitella. So, even if a 

“Science Day” were permissible, Plaintiffs and their expert cannot comply with 

the Order as written.

 

1 This Court has ruled that the Defendants had a duty to preserve all of this 

evidence beginning at least as early as 1984, if not earlier. BASF Catalysts LLC, 

Civil Action No. 11-1754, 2016 U.S. Dist. LEXIS 46273, *21-22 (D.N.J. Apr. 5, 

2016).

2

Indeed, the Special Discovery Master has previously ordered that expert 

reports are not due until June 1, 2018. (CM/ECF # 371).

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Third, requiring the parties to put on an elaborate, costly Science Day 

evidentiary hearing, which cannot be used for evidentiary purposes in the case is 

contrary to law. Tutorial proceedings are not common place litigation events. And 

when allowed or requested by a court, usually to initially inform it on a novel or 

highly esoteric technical matter such as some particular technology involved in a 

patent dispute, courts emphatically note the tutorials are not evidence and cannot 

serve as basis to make rulings on issues. See discussion infra. The elaborate 

proceeding called for here in the Science Day Order thus has no discernable utility 

and is not needed for the Court to determine if the New Jersey crime-fraud 

exception or the elements of the Kozlov exception apply to negate BASF’s claims 

of privilege. Indeed, Plaintiffs’ proof of a prima facie case of crime-fraud is far 

more than sufficient based on the documents attached to the pleadings alone to 

require the Special Discovery Master to proceed to the next stage of reviewing the 

withheld documents in camera.

For these reasons, which are expanded upon below, the Court should grant 

Plaintiffs emergent application for a Stay of the Special Discovery Master’s 

Science Day Order pending this Court’s determination of Plaintiffs’ appeal. 

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II. STATEMENT OF THE CASE RELEVANT TO THE SCIENCE 

DAY ORDER

Following the Third Circuit’s decision here in Williams v. BASF Catalysts 

LLC, 765 F.3d 306 (3d. Cir. 2014), Plaintiffs filed a Second Amended Complaint 

with leave of the Court. (CM/ECF # 156, 158). The parties then filed several 

discovery motions, including a motion by BASF requesting that the Court hold a 

“Science Day.” (Exhibit 5, CM/ECF # 238).

In its initial motion requesting a “Science Day,” BASF wished to address 

“[t]he relevant differences between asbestos and talc” and “[s]tandards and 

terminology related to asbestos exposure and the amount of asbestos in a product.” 

(Exhibit 5, CM/ECF # 238). In opposition to that request, Plaintiffs noted that “in 

the 50 years of litigation involving asbestos containing products there is no 

precedent for BASF’s request . (Exhibit 6, CM/ECF # 240). Plaintiffs also stressed 

that “the time and expense associated with the preparation and proper presentation 

associated with BASF’s proposed ‘Science Day’ is unjustified.” (Id.). The Hon. 

Joseph A. Dickson, U.S.M.J. denied BASF’s motion for a Science Day as being 

“not necessary.” (Exhibit 7, CM/ECF # 261).

Although discovery in earnest in this case had only just begun, and virtually

no depositions of the Defendants had been taken yet under this caption

(depositions had been taken and many documents had been produced under seal in 

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a two year long proceeding in the related Superior Court Sampson case before 

Justice Gary S. Stein (Ret.) who sat as the state court Special Discovery Master), 3

the Special Discovery Master at the October 26, 2017 argument sua sponte

directed Plaintiffs to file their crime-fraud exception motion by November 2, 2017; 

that is seven days after the hearing. (CM/ECF # 369). Plaintiffs complied and filed 

their crime-fraud motion on that date. (Exhibit 2).

It merits pausing here to note that Plaintiffs were ordered to file their crime 

fraud motion without the benefit of even a single deposition in this case. Since then 

depositions in this case which inform the crime-fraud motion have been taken, are 

ongoing and are scheduled to conclude on May 21, the class-wide fact discovery 

end date. The parties have an aggressive and tight schedule of preparing for and 

taking or defending depositions all over the country, which is being disrupted by 

having to stop and prepare for the Science Day evidentiary hearing. New and 

significant information bearing upon the fraud issues in this case is moreover being 

discovered with every deposition taken, such as:

 

3 Efforts by Plaintiffs to provide the Special Discovery and the Court with the 

benefit of the depositions of BASF’s former counsel taken before Justice Stein in 

Sampson were stymied by BASF and its co-defendants who objected to the Special 

Discovery Master and the Court having access. A motion by the Sampson counsel 

(who also represent the Williams plaintiffs here) before the New Jersey Supreme 

Court to obtain permission to share the factual record with this Court is presently 

pending to allow this Court’s access to the Sampson record as had been allowed in 

a previous Order entered in the Law Division.

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1. BASF’s corporate representative, Charles Carter, who had signed 

affidavits under penalty of perjury based upon his personal knowledge and review 

of corporate records stating that no asbestos testing data or results existed, has 

recently testified contrary to his representations in his affidavits that he actually 

possessed no personal knowledge and had never reviewed a single document.

Exhibit 22, 3/14/2018 Carter Tr., T81:8 to 82:13, 85:22 to 86:10.

2.Englehard/BASF’s in-house counsel testified that the company completely 

outsourced the responsibility for the defense of Emtal asbestos claims to Cahill, 

including all discovery responses that there was no evidence of any asbestos in 

Emtal talc. BASF’s counsel also testified that the company did not take steps to 

verify that the discovery responses were truthful. Exhibit 23, 4/24/2018 Hassett 

Tr., T78:8-18.

3. Engelhard/BASF’s in-house counsel indicated in answers to 

interrogatories filed in the underlying cases that he had coordinated the responses 

to answer interrogatories. He has now admitted, however, that he never actually 

read a single interrogatory or had anything to do with providing the responses. 

Exhibit 23, 4/24/2018 Hassett Tr., T113:10-16.

4. Even after a Cahill paralegal informed Cahill lawyers that he had in his 

possession the depositions of Dr. Hemstock and Dr. Gale, both of whom had 

testified in Westfall that Engelhard found asbestos in the Engelhard mine and 

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finished product, BASF continued to represent to claimants and courts that there 

was no such evidence of asbestos contamination in Emtal talc. Exhibit 24, 

4/13/2018 Kelly Tr., T249:20 to 251:6.

5. In 2005, a lawyer in Rhode Island discovered the identity of the plaintiff’s 

expert, Dr William Glassley, in the Westfall case in 1983, and secured a report 

from him establishing that he had personally visited the mine and analyzed 

samples which showed the mine contained chrysotile asbestos. When confronted 

with the report, BASF/Engelhard quickly settled the Martin case for $400,000 

(which was 400x the average amount paid in cases within the Williams class which 

did not have the benefit of this evidence) on the condition that the plaintiff’s

lawyer never disclose the information to anyone. BASF thereafter placed Dr. 

Glassley’s expert report on the privilege log and continued to falsely represent to 

litigants and courts that there was no evidence of asbestos in the Johnson mine.

Exhibit 23, 4/24/2018 Hassett Tr., 94:12-21; 156:15-22; 167:7-9.

6. In order to secure dismissals of all the cases filed in Pennsylvania, BASF 

represented to the plaintiff’s lawyer 12 different times that there was no evidence 

of asbestos in the Engelhard product. Defendants moreover represented to Judge 

Charles Weiner, the federal judge in the Eastern District of Pennsylvania

overseeing all federal cases in the United States, that the Engelhard product was 

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asbestos free and threatened the plaintiff’s lawyer with sanctions. Exhibit 25, 

4/26/2018 Schwartz Tr., T2744:1 to 282:21.

7. In 2009, BASF again commissioned it local counsel to threaten a 

plaintiff’s lawyer in New Jersey with sanctions if she did not agree to dismiss 

BASF on the basis that there was no asbestos in the talc. In his recent deposition, 

BASF’s local counsel indicated the evidence of positive tests in possession of 

BASF and the depositions of the corporate scientists were not shared with him. He 

further indicated that he would have never have agreed to send the letter 

threatening sanctions if he had been told the truth and the evidence in BASF’s 

possession had been shared with him. Exhibit 24, 4/13/2018 Kelly Tr., T249:18 to 

251:6.

People still to be deposed include the former General Counsel of Engelhard, 

lawyers from Cahill, and the corporate representatives of both Cahill and BASF.

Yet even with the above fact discovery still going on, the Special Discovery 

Master conducted oral argument on the crime-fraud motion on February 23, 2018. 

In that argument, counsel for BASF again brought up a Science Day. Exhibit 9, 

2/23/18 Hr’g Tr., T263:14-21. Recognizing however that a Science Day would be 

“an expensive proposition for all the parties who are involved,” the Special 

Discovery Master expressed his view that a Science Day is not “necessary.” Id., 

T285, T18-25.

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The Special Discovery Master again heard oral argument on Plaintiffs’ 

crime-fraud motion on April 2, 2018. During the second argument on the crimefraud issue, the Special Discovery Master volunteered that “maybe there is some 

worth to the Science Day that [Defendants] keep wanting to have.” Exhibit 10,

4/2/2018 Hr’g Tr., 204:3-5. The Special Discovery Master, however, neither said 

why he was wavering on holding a Science Day nor what issues should be 

addressed.

The Special Discovery Master directed the parties to meet and confer 

regarding a Science Day. There was no agreement between the parties given the 

disparate views of whether such was required or needed and, even were it ordered, 

the topics and process.

On April 18, 2018, the Special Discovery Master sent the parties an email 

noting that he had only “expressed [his] desire to grant BASF’s earlier denied 

motion for a ‘science day’ to aid [him] in understanding the claims underlying 

plaintiff’s motion to determine the applicability of the crime-fraud and Kozlov

exceptions to defendants’ privilege claims.” (Exhibit 11). Again, the Special 

Discovery Master gave no reasons for the Science Day.

That same day, April 18, 2018, BASF advised that it would be filing a letter 

on the subject, and the Special Discovery Master responded by directing that any 

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responses thereto be made within 24 hours. BASF soon thereafter filed its letter, 

and the Special Discovery Master sent the following email reply that same day:

For the avoidance of doubt, there are two conditions precedent that 

should guide you in making your comments. First, there will be a 

"science day;" this is not a question of "whether" but of 

"when." Second, the scope of and procedure to be following during the 

"science day" will be determined once everyone's comments are in 

hand.

(Exhibit 12) (emphasis added). Concerned by the Special Discovery Master’s 

imposition of a 24-hour deadline to respond to the Science Day proposal put forth 

by BASF on April 18, 2018, Plaintiffs requested additional time to reply (Exhibit 

13). (CM/ECF # 484). As Plaintiffs explained, because “we have not yet had an 

opportunity to address its need, we write today to formally object and share our 

view that a Science Day is not necessary to meaningfully advance these 

proceedings on Plaintiffs’ crime-fraud motion.” (Id.). Plaintiffs also asked that 

there be full briefing on the subject given the importance of the crime-fraud motion 

to this case.

Notwithstanding Plaintiffs’ repeated requests for full briefing on the issue,

the Special Discovery Master next entered an order on April 23, 2018, that an 

evidentiary hearing for the receipt of expert proofs in aid in resolving plaintiffs’ 

pending motion to determine the applicability of the crime-fraud and Kozlov

exceptions to defendants’ privilege claims be, and the same hereby is, scheduled 

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for Wednesday, May 2, 2018,” beginning with the exchange of expert reports on 

April 30, 2018. (Exhibit 1, CM/ECF # 485). It is in this Order that the Special 

Discovery Master for the first time delineated the scope of the hearing by adopting 

all the points given to him by BASF:

(a) the overall testing record concerning Emtal talc to determine 

whether and to what extent it contained asbestos;

(b) the relevant capabilities and limitations of the testing methods then 

used by BASF (and its predecessors) and others to determine whether 

and to what extent the Emtal talc was contaminated with asbestos;

(c) the conclusions, if any, reached by government investigators, thirdparty analysts, and others regarding whether and to what extent the 

Emtal talc was contaminated with asbestos; and, 

(d) the results of any more recent testing of Emtal talc samples[.]

(Id.). 

The Science Day evidentiary hearing as ordered is elaborate and will be 

expensive for the parties to put on. Unlike the Science Day held before Judge 

Wolfson in the ovarian talc cases, in which counsel for the parties explained the 

science and the studies to the Court concerning a single targeted issue in nonargumentative form, (Exhibit 21), the Science Day Order sets up a full blown 

adversarial evidentiary hearing, requiring that “these proofs are to be presented 

exclusively via the viva voce testimony of experts qualified as required by Fed. R. 

Evid. 702” and that “summaries of the testimony of each of the experts to be 

tendered at the May 2, 2018 evidentiary hearing shall be exchanged among the 

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parties by no later than noon on Monday, April 30, 2018.” (Exhibit 1, CM/ECF # 

485).

On April 24, 2018, Plaintiffs requested that the Special Discovery Master

stay the implementation of the April 23, 2018 Order pending appeal. (Exhibit 15, 

CM/ECF # 487). In response, BASF responded that the Special Discovery Master 

should deny the motion for a stay but agreed that the Science Day could be 

postponed. (Exhibit 16, CM/ECF # 488). Cahill likewise did not object to a 

postponement of the Science Day. (Exhibit 17, CM/ECF # 490).

Although the Special Discovery Master received no objection from the 

parties to postponing the Science Day, on April 24, 2018, he denied Plaintiffs’ 

motion for a stay pending appeal. (Exhibit 18, CM/ECF # 491).

III. STANDARD OF REVIEW

The decision of whether to grant a stay in this case is committed to this 

Court’s discretion, “since it is a matter of the court’s inherent power to conserve 

judicial resources by controlling its own docket.” Cost Bros., Inc. v. Travelers 

Indem. Co., 760 F.2d 58, 60 (3d Cir. 1985); AT&T Corp. v. Pub. Serv. Enter., Inc., 

Civil Action No. 99-4975, 2000 U.S. Dist. LEXIS 4649, *15 (E.D. Pa. Apr. 12, 

2000) (granting stay pending appeal where the appeal would call the validity of the 

decision into question). The Court must consider the following factors in 

determining whether to issue a stay pending appeal: (1) whether the stay applicant 

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has made a showing that he is likely to succeed on the merits; (2) whether the 

applicant will be irreparably injured absent a stay; (3) whether the issuance of the 

stay will substantially injure the other parties interested in the proceeding; and (4) 

where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

IV. ARGUMENT

Rule 1 of the Rules of Civil Procedure offers one fundamental promise to all 

litigants, that the Rules of Civil Procedure will be construed, administered, and 

employed . . . to secure the just, speedy, and inexpensive determination of every 

action and proceeding. Requiring parties engaged in extensive discovery under 

time pressure of an impending discovery cut-off day of May 21st to stop and 

engage experts, obtain and present expert reports in one week, when expert reports 

cannot be generated in less than one month on the extensive topics listed in the 

Special Discovery Master’s order, and then have the experts come in from across 

the country and testify shatters the very core premise of Rule 1 upon which all of 

the Rules of Civil Procedure are premised. 

Plaintiffs believe their forthcoming appeal is likely to succeed because

Defendants three-prong fraudulent defense scheme included the denial and 

suppression of any positive evidence of asbestos contamination, which denial and 

suppression requires no scientific expertise to understand. Indeed, three other New 

Jersey jurists who have ruled upon the same crime fraud issues surrounding 

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Defendants’ actions—Justice Stein, Appellate Division Judge Lintner and Superior

Court Judge Viscomi—did not require an elaborate Science Day in order to 

consider and determine the applicability of the crime-fraud exception. Moreover, a 

Science Day tutorial is not evidence upon which the Special Discovery Master 

could resolve the crime-fraud motion in the first instance. Further, the truncated 

procedure and denial of merits briefing leading to the Science Day Order 

constitute a denial of Plaintiffs’ due process rights. Plaintiffs were afforded just 

two days to offer an opposition to the need for a Science Day though receiving, in 

the interim, an e mail from the Special Discovery Master that there would be a 

Science Day and that he was in interested in hearing only “when” and not 

“whether” a Science Day should take place. (Exhibit 12). Thus, no matter the 

schedule, the Special Discovery Master had already decided the issue without 

considering Plaintiffs’ opposition.

In addition to the procedural and substantive irregularity of the decision to 

hold a Science Day, and not following Third Circuit precedent, the Special 

Discovery Master has not yet reviewed BASF’s withheld documents at issue in the 

crime-fraud motion to both determine if they provide prima-facie basis for 

conducting an in camera review as well as to begin making rulings on what comes 

within the ambit of the exception and what does not. In re Chevron Corp., 633 

F.3d 153, 167 (3d Cir. 2011). Although having stated the need to “deal with the 

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facts as they are,” Exhibit 10, 4/2/18 Hr’g Tr., 52:23-24, the Special Discovery

Master has only requested, but not ordered, BASF to provide him the very 

documents for review the Third Circuit directs he should review; instead, the 

Special Discovery Master has scheduled a Science Day, which cannot form the 

basis for determining the state of mind of the Defendants who conceived and 

carried out the fraudulent defense scheme more than thirty years ago. Indeed, after 

the fact scientific opinion in a fraud and fraudulent concealment case cannot and 

should not be a basis upon which the Court decides the crime-fraud motion. 

Accordingly, Plaintiffs will show on appeal that a Science Day serves no purpose 

and that the Order should be vacated.

A. Plaintiffs will prove that the unprecedented Science Day Order is 

clearly erroneous and contrary to the law.

1. Because a science tutorial is not evidence, a Science Day would 

neither be useful nor necessary to the resolution of Plaintiffs’ crimefraud motion and invites potential overstepping by the Special 

Discovery Master of his authority and role under CM/ECF # 335.

A court may permit or require the use of tutorials to educate it in cases 

involving complex technology or other complex subject matter that may be 

especially difficult for a non-specialist in a particular field to comprehend. See Best 

Med. Int’l, Inc. v. Accuray, Inc., No. 10-1043, 2012 U.S. Dist. LEXIS 184490, 

*314 (W.D. Pa. 2012); In re Pharmaceutical Industry Average Wholesale Price 

Litig., 230 F.R.D. 61, 67 (D. Mass. 2005). Most critically, a “tutorial is not 

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evidence; it is only for the Court’s benefit so that it can understand” the complex 

subject matter. Ascion, LLC v. Tempur Sealy Int’l, Inc., No. 15-12067, 2017 U.S. 

Dist. LEXIS 169279, at *11 (S.D. Mich. Oct. 13, 2017); accord Effective 

Exploration, LLC v. Pa. Land Holdings Co., Civil Action No. 14-00845, 2015 U.S. 

Dist. LEXIS 111504, at *138 (W.D. Pa. 2015) (“[t]he parties’ technology tutorials, 

while helpful, do not provide ‘evidence’ on which a Court can rely, nor is that the 

purpose of a ‘technology tutorial.’”). In fact, when Judge Wolfson recently 

conducted a Science Day in the Johnson & Johnson talcum powder cases, the court 

began the session with the following statement on the purpose of the tutorial:

First of all, this educational exercise today, the agreement between 

counsel and the Court is that this is for, essentially, informational 

educational purposes and may not be used by any party in this case. It 

will not be admissible in evidence in any matter or in any other matter 

pending, or to be filed.

(Exhibit 21). Consistent with this purpose, Judge Wolfson restricted the science 

tutorial before her to the issue of talcum powder’s association with ovarian cancer, 

which was then given to her through presentations by each side’s respective 

counsel limited to two hours a side. No experts were called to testify or appear 

through affidavits.

None of the safeguards that Judge Wolfson employed to prevent misuse of 

the tutorial to her are present in the Science Day Order. Meaning no disrespect, the 

Special Discovery Master was appointed by the Court to determine the 

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administration of discovery, not decide this case. (CM/ECF # 335, §I. Scope of the 

Special Master’s Authority) (“[S]special master shall oversee the schedule for

completion of discovery and all discovery disputes and motions related 

thereto....”). It is consequently troubling that the scope of the Science Day 

evidentiary hearing set forth in the Science Day Order is so broad and wideranging: the issues identified by the Special Discovery Master go to the merits of 

the underlying asbestos cases which the Third Circuit has already ruled are not part 

of this case, and not to the crime-fraud exception. It appears that the Special

Discovery may be intent on making rulings as to what is or is not asbestos or what 

is or is not a sufficient test finding of asbestos to have warranted its production in 

the underlying cases. That is not the Special Discovery Master’s role and that is not

what he is authorized by the Court to do. Id.

Furthermore, there is no evidence in the record showing that Defendants 

concealed and otherwise misrepresented evidence because of questions stemming 

from the geologic science of talc ore, the text and meaning of government 

regulations or the validity of test findings and methodologies. Rather, Defendants 

suppressed and misrepresented evidence of positive test results precisely because 

the tests were asbestos positive and could support a plaintiff’s case, as the evidence 

did in the Westfall case when Cahill produced it to Westfall’s lawyer. The legacy 

tests that the Williams Plaintiffs have uncovered in this proceeding were produced 

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in the Westfall case, and they should have been produced in the later cases when 

Engelhard and BASF were sued. Yet Defendants did not produce or identify these

positive test results. Indeed, BASF’s local counsel, Robert Kelly, in the Paduano 

case finally turned over the positive test results testified to in the Westfall when 

he learned of their existence. 

Likewise, the issues in the Science Day Order have no bearing on why the 

Hemstock, Gale, and Triglia depositions in the Westfall case were suppressed. 

These deponents were Engelhard research and development scientists, with

Hemstock serving as the Vice President of Englehard’s Mineral and Chemical 

Division R&D department when he testified. That should be all the science a court 

needs to know in determining if suppression of the depositions, which state the talc 

contained asbestos, was material and done so in order to hamper and defeat 

asbestos claimants’ claims

BASF has argued that a scientific tutorial is necessary on these issues to 

understand “why there was a reasonable basis in the minds of lawyers and others in 

the 80s and the 90s and the 2000s for statements that were made.” Exhibit 9,

2/23/18 Hr’g Tr., T263:14-21. But this contention is neither factually nor logically 

correct or even plausible. At the time defendants were withholding evidence, 

BASF’s responses to discovery and representations in briefs were unequivocal: it 

represented that there was no evidence whatsoever of asbestos contamination. A 

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Science Day would not shed any light on the simple fact that Engelhard/BASF and 

Cahill for three decades falsely told courts and claimants that there was no positive 

evidence of asbestos in the talc, and thereby got their claims dismissed. Indeed, as 

stated above, we know from contemporaneous documents what was “in the minds 

of lawyers and others” when the statements were made. The proper question here 

is thus not whether BASF can now present scientific opinion in an attempt to 

justify the scheme employed decades ago against asbestos claimants. What matters 

is what Defendants actually said and did when they denied the very existence of 

material facts and evidence about asbestos in the talc that was then in BASF and 

Cahill’s custody, possession or control and which they had a duty to preserve. 

Williams v. BASF Catalysts LLC, Civil Action No. 11-1754, 2016 U.S. Dist. 

LEXIS 46273, *21-22 (D.N.J. Apr. 5, 2016).

Suffice to say, as a matter of common sense none of the areas identified by 

the Special Discovery Master would be of any proper use to the Court in deciding 

Plaintiffs’ crime-fraud motion: the issue is not the scientific explanation or value of 

asbestos-positive test results but whether, for purposes of obtaining the dismissal 

of cases, Defendants concealed and suppressed that evidence, which is the most 

central element of an asbestos case. Williams v. BASF Catalysts LLC, 765 F.3d 

306, 322 (3d Cir. 2014) (asking “[w]hat could be more important to a claim that 

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talc caused asbestos disease than proof that talc contained asbestos?”). And in that 

regard, there is no question that they did.

The falsehood used to secure dismissals was not that the evidence was 

unreliable or did not meet some reporting threshold. Rather, BASF and its counsel 

represented that the product contained no amount of asbestos whatsoever. For 

example, BASF represented in a letter dated May 3, 2002 to counsel for one of the 

class representatives that “there is absolutely no evidence that this talc contained 

asbestos.” (Exhibit 20, 5/3/2002 Mark ltr. to Strauss (emphasis added)).

2. The Special Discovery Master can resolve the crime-fraud motion 

without weighing in on the science of asbestos testing.

Defendants suggest that certain governmental definitions of asbestos 

containing product justify their representations that there was no evidence of 

asbestos in Emtal talc. But assuming reliance on these definitions by Defendants, 

and there is no evidence of such, Plaintiffs’ crime-fraud motion can be resolved

without first determining whether Emtal talc contained a sufficient level of 

asbestos because the Defendants’ fraudulent scheme was predicated on denying the 

existence of any positive test results.

In Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir. 1990), Dr. Arthur 

Rohl on behalf of Philadelphia area tireworker claimants, opined that Vermont 

Talc Company’s product contained just 0.2 to 0.5% asbestiform minerals in some 

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samples, which would have become airborne and respirable when the talc was 

used. Id. at 377. Judge Charles A. Weiner granted summary judgment for all four 

defendants, grounding his conclusion that plaintiffs had failed to present sufficient

product identification evidence. Id. at 375. In particular, Judge Weiner rejected 

Plaintiff’s exposure evidence of the “fiber drift theory,” holding that this failed to 

comport with Eckenrod’s “frequency, regularity and proximity” standard. Id.

The Third Circuit reversed the grant of summary judgment, explaining:

As we have discussed, under the strict Eckenrod standard, a plaintiff 

claiming asbestos-related injury may withstand a defendant’s motion 

for summary judgment only in those cases in which he is able to raise 

a reasonable inference that he was exposed to and injured by fibers 

released by the particular defendant’s product. Our review of the 

record convinces us that, completely without reference to the fiber 

drift theory, some of the plaintiffs were able to adduce evidence 

sufficient to establish the requisite Eckenrod showing of regularity, 

frequency and proximity with regard to some of the defendants’ 

products and are, therefore, entitled to have the question of 

causation considered by the jury.

Id. at 376 (emphasis added). In other words, notwithstanding that the product 

contained just 0.2 to 0.5% asbestiform minerals, the Third Circuit found a genuine 

dispute of material fact about even low level asbestos contamination that should go 

to the jury.

This finding showing that low level asbestos claims can go to the jury is 

significant generally. But its importance here is dramatic as the test results 

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Engelhard concealed about Emtal talc showed even higher asbestos content than 

those in Robertson which the Third Circuit allowed to go forward. Id. at 372, 384. 

By denying the existence of and secreting away positive testing results,

Defendants denied every putative class member exactly what Defendants 

themselves seek here for their own benefit: an opportunity to assess the strength 

and validity of both the positive and negative testing results. The Court accordingly 

need not assess the validity and impact of the positive and negative test results for 

asbestos contamination; it suffices in the context of this case that there was 

evidence of asbestos in Emtal talc, which would have allowed plaintiffs to go 

forward with their cases. That is particularly so given that Defendants’ fraudulent 

defense did not rely on a distinction between reliable and unreliable test results or 

trace and abundant amounts. Rather, Defendants falsely represented—without 

exception or equivocation—that there was simply no asbestos, no evidence, and 

no Engelhard witness testimony of asbestos in Emtal talc. (Exhibit 19).

3. The Special Discovery Master should review the documents at issue 

to determine if those documents and the evidence placing the 

documents in context establish the applicability of the crime-fraud 

exception.

To understand and appreciate the nature and extent of Defendants’ 

fraudulent scheme, the Special Discovery Master should review the claimedprivileged documents that Plaintiffs identified because only then could the Court 

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“deal with the facts as they are” in determining whether the crime-fraud exception 

applies here. Exhibit 10, 4/2/18 Hr’g Tr., 52:23-24.

In declining to do so, the Special Discovery Master explained that (1) the 

burden of proof Plaintiffs must satisfy is that of a “preponderance of the evidence”; 

and (2) that the Court will only conduct an in camera review of the documents at 

issue once a prima facie of crime-fraud has been made. Exhibit 9, 2/23/2018 Hr’g 

Tr., 84:4-11; 108:17-19. This position however is not only contrary to the law but 

also prejudicial to Plaintiffs. 

As the Supreme Court has explained, a movant need only produce sufficient 

evidence to “support a reasonable believe that in camera review may yield 

evidence that establishes the exception’s applicability” to justify an in camera

review. United States v. Zolin, 491 U.S. 554, 574-75 (1989). That is because an “in 

camera inspection . . . is a smaller intrusion upon the confidentiality of the 

attorney-client relationship than is public disclosure[.]” Id. at 570-72. As a result, 

the gateway standard guiding the Court’s discretion is a liberal one: “[b]efore 

engaging in in camera review to determine the applicability of the crime-fraud 

exception, ‘the judge should require a showing of a factual basis adequate to 

support a good faith belief by a reasonable person’ . . . that in camera review of the 

materials may reveal evidence to establish the claim that the crime-fraud exception 

applies.” Id. at 572 (quoting Caldwell v. District Court, 644 P.2d 26, 33 (Colo. 

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1982)). And consistent with these pronouncements, the Third Circuit has held that 

“even if the party seeking to invoke the crime-fraud exception to the attorneyclient privilege cannot make out a prima facie case sufficient to overcome the 

privilege, it still may be entitled to have a court make an in camera review of the 

documents in issue to determine if those documents and the evidence placing the 

documents in context establish the applicability of the crime-fraud exception to the 

privilege.” In re Chevron Corp., 633 F.3d 153, 167 (3d Cir. 2011). Stated another 

way, Plaintiffs need not point to the proverbial “smoking gun” as the Special 

Discovery Master has suggested. 4/2/2018 Hr’g Tr., T95:21-24.

The Special Discovery Master should review the sought-after documents. 

That he has not already done so is contrary to the law and also prejudicial to 

Plaintiffs because while the crime-fraud issue has been pending for nearly six 

months, Plaintiffs have been and continue to be left conducting discovery without 

the benefit of a ruling on the crime-fraud motion.

B. Plaintiffs will suffer irreparable harm if this request for a stay 

pending appeal is not granted.

If Plaintiffs’ request for a stay pending appeal is denied, the conduct and 

ordered format of Science Day would impose significant, impossible and 

unnecessary burdens on Plaintiffs. See St. Charles Hosp. & Rehab. Ctr. v. Mylan 

Labs, 208 F.R.D. 1, 6 (D.D.C. 2002) (granting a stay “to conserve the resources of 

all parties” where the appeal “could dispose of this litigation”); Alliance to End 

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Repression v. Rochford, 75 F.R.D. 441, 447 (N.C. Ill. 1977) (granting motion to 

stay class discovery where there was a “possibility that needless discovery might 

occur if the Circuit Court were to decide to modify the class”).

To begin with, the Science Day envisioned and ordered by the Special 

Discovery Master requires Plaintiffs to retain, prepare, schedule, and compensate 

experts on short notice in what has already been an extraordinarily costly 

proceeding.4 That should not be required as the June 1

st deadline for expert reports 

is still more than a month off. Additionally, Plaintiffs did not envision having an 

expert speak to the topics that the Special Discovery Master wants them to address 

as they are in no way germane to this proceeding. Moreover, if this appeal is 

granted, the Science Day will not only have been unnecessary, but also a 

distraction from the pressing needs of class-wide discovery with its approaching 

end date of May 21, 2018. 

As a practical matter, Plaintiffs are unable to on short notice obtain an expert 

to testify as their current consulting mineralogist is unable to be in Philadelphia to 

attend the hearing and testify and cannot prepare by April 30th a report on his 

testimony as required. Nor is he able to become prepared to address the four broad 

areas set out in the Order by May 2, 2018. See Placitella Certification.

 

4 To date, the Special Discovery Master has invoiced the parties over 

$260,000.

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Further, Plaintiffs would also be substantially prejudiced by a Science Day 

evidentiary hearing if Defendants present testimony on the “results of any more 

recent testing of Emtal talc samples” as Plaintiffs have not been provided with any 

such samples or testing data. Testimony on this issue would thus amount to 

nothing less than a trial by ambush, which should not be permitted.

C. Granting a stay pending appeal would not injure any of the parties.

The grant of a motion to stay the implementation of the Science Day Order 

would not injure any of the other parties. Indeed, while Defendants opposed 

Plaintiffs’ motion for a stay pending appeal before the Special Discovery Master, 

they did not oppose the postponement of the Science Day and offered no 

explanation for how a stay would cause them any injury.

D. The grant of a stay pending appeal will not harm the public interest.

A stay of the proceedings in this matter is consistent with the public interest 

because it will avoid the unnecessary expenditure of money and preserve judicial 

resources. See AT&T, 2000 U.S. Dist. LEXIS at *15–16 (noting that a stay was 

appropriate to avoid “a potentially gross waste of judicial resources”). Generally, 

where no harm will result from a delay in judicial process, a stay should be 

granted. United States v. Nutrition Serv., Inc., 234 F. Supp. 578, 579 (W.D. Pa 

1964).

Nothing suggests that the public interest will be harmed if a stay is imposed

here. To the contrary, if a stay pending appeal is not granted, moving forward with 

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the Science Day would result in a complete waste of judicial resources as an

“evidentiary hearing” would be neither necessary nor useful in that a Science Day 

tutorial is not competent evidence upon which the crime-fraud motion can be 

based.

V. CONCLUSION

For all these reasons, a stay of the Special Discovery Master’s Science Day 

Order should be granted pending appeal. Plaintiffs here have fought long and hard 

to protect and advance the interests of the class members and are ardently opposed 

to Defendants effort to erect a smokescreen of “science” to blot out the essential 

fact that Defendants have repeatedly for nearly 30 years told three material lies to 

courts and plaintiffs. The Third Circuit and this Court have found that Plaintiffs 

stated claims for fraud and fraudulent concealment for this conduct are distinct 

from a claim to reopen the underlying suits. And since then, as we outline above, 

Plaintiffs have been marshalling evidence to back up those allegations. Yet the 

order that a Science Day evidentiary hearing occur—with pre-hearing expert 

reports and live testimony —in less than 10 days deprives Plaintiffs of the very 

premise the rules of civil procedure promise in Rule 1: that the Rules of Civil

Procedure be construed, administered, and employed by the court and the parties to 

secure the just, speedy, and inexpensive determination of every action and 

proceeding. A hearing on the essence of the case in less than 10 days is not just. A 

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stay is therefore needed to afford Plaintiffs their right to meaningfully appeal the 

Science Day Order to this Court and the Motion should be granted.

Respectfully Submitted,

 COHEN, PLACITELLA & ROTH, P.C.

 /s/ Christopher M. Placitella

 Christopher M. Placitella, Esq.

 (NJ Atty #: 027781981)

 Michael Coren, Esq.

 (NJ Atty #: 024871979)

 Jared M. Placitella, Esq.

 (NJ Atty #: 068272013)

 Eric S. Pasternack, Esq.

 (NJ Atty #: 015132011)

 127 Maple Avenue

 Red Bank, NJ 07701

 (732) 747-9003

 FOX ROTHSCHILD LLP

 Jeffrey M. Pollock, Esq.

 (NJ Atty #: 015751987)

 Princeton Pike Corp. Center

 997 Lennox Drive,

 Building 3

 Lawrenceville, NJ 08648

 (609) 896-7660

 Attorneys for Plaintiffs and the Putative Class

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