One Newark Center, 19th Floor

Newark, New Jersey 07102

Tel: 973.690.5400 Fax: 973.466.2761 

www.rwmlegal.com

December 15, 2017

VIA ECF

The Honorable Roberto A. Rivera-Soto

Ballard Spahr LLP

210 Lake Drive East, Suite 200

Cherry Hill, New Jersey 08002

Re: Kimberlee Williams, et al. v. BASF Catalysts LLC, et al.

Civil Action No. 11-cv-01754 (JLL) (JAD)

Dear Justice Rivera-Soto:

At the November 30, 2017 hearing, it was made clear that the Bevan Firm did 

not object to producing entries from its client database regarding putative class 

members, subject to an appropriate confidentiality designation and non-waiver 

agreement. See 11/30/2017 Hr’g. Tr. at 32:15 - 33:4; see also 11/29/17 Bevan Ltr. 

to Court (ECF No. 380) (agreeing to production of Bevan database “for the putative 

class if the report will be covered by the same non-waiver protection Defendants 

have sought for their own databases.”). As a result, since the November 30 hearing, 

BASF has been working to reach agreement with the Bevan Firm on confidentiality 

and non-waiver designations so that production of the Bevan database could be 

resolved without the Court’s intervention.

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The Honorable Roberto A. Rivera-Soto

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Although this discovery issue seemed on track for a speedy resolution, 

plaintiffs’ counsel (Mr. Placitella) interrupted BASF’s meet-and-confer efforts with 

Bevan and strongly suggested that Bevan (a non-party) might still offer some 

objections to avoid producing its database. Thus, over the past two weeks, plaintiffs’ 

counsel (and now Bevan) revisited the Bevan Firm’s earlier agreement to produce 

the Bevan database and tried to carve out the most relevant and critical 

information—information that could seriously undermine plaintiffs’ class 

certification efforts. 

Unlike the six class representatives, each of whom alleges their decedent 

developed mesothelioma or lung cancer because of asbestos exposure, most of the 

putative class did not claim to have asbestos-related mesothelioma or lung cancer. 

Rather, most of the putative class—and almost all of the 30 plaintiffs Bevan 

identified under the Court’s October 27, 2017 Order—claimed to have a form of 

non-malignant respiratory disease (“NMRD”), such as pleural plaques. This 

distinction is critical for a variety of reasons, including (as relevant here) because a 

plaintiff claiming NMRD would have sought and received substantially less 

compensation (if any) than a plaintiff claiming mesothelioma or lung cancer. In 

addition, NMRD claims have been widely criticized because they often were 

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frivolous or based on suspect diagnoses and litigation practices. See Ex. A (Am. Bar 

Ass’n, Comm’n on Asbestos Litig., Report to the House of Delegates, at 6, 13 (Feb. 

2003)) (“[F]or-profit litigation screenings began systematically generating tens of 

thousands of new non-malignant claims each year by individuals who had some 

degree of occupational asbestos exposure, but did not have, and probably would 

never get an impairing asbestos-related disease.”).

Despite the foregoing, plaintiffs now seek to redact the following from the 

Bevan database:

• The Identity of the Referring Attorney. The database information Bevan produced 

for the class representatives lists the National Tire Workers Litigation Project 

(“NTWLP”) and its attorneys as referring counsel for some cases. The NTWLP, 

which was central to the Bevan Firm’s asbestos and talc litigation docket, has 

been roundly criticized by federal courts for bringing a flurry of abusive and 

frivolous claims. Plaintiffs’ counsel acknowledges that the identity of the 

referring attorney is not privileged but now seek to redact it anyway on the 

purported grounds that it is “premature class discovery.”

• Whether Plaintiffs Qualified for and Received Payment from Asbestos Settlement 

Trusts. Other fields in the Bevan database indicate whether plaintiffs qualified 

for payment from asbestos settlement trusts, or whether their claims were denied. 

For plaintiffs who qualified, the database also provides the amount received from 

the trust. This information is relevant to damages, among other issues. Filings 

with asbestos settlement trusts are also routinely produced in asbestos litigation. 

Indeed, in Ohio where Bevan filed his cases, filings with asbestos settlement 

trusts must be produced in asbestos litigation. See Ohio Rev. Code § 2307.952. 

Plaintiffs now seek to redact the information even though they acknowledge that 

it is not protected by a confidentiality agreement.

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• Compensation Received by Plaintiffs. The Bevan database also shows how much 

compensation each plaintiff received from various defendants, including talc and 

asbestos defendants. This data is critical. Plaintiffs are claiming that, but for the 

defendants’ alleged misrepresentations, plaintiffs would have received greater 

compensation for their purported injuries. But if the data shows that plaintiffs 

were settling for nominal sums with asbestos manufacturers and with talc 

manufacturers whose products were known to contain asbestos, that data would 

undercut plaintiffs’ damages claims here. Plaintiffs now seek to redact all of this 

information. Based on the entries Bevan has produced to date, however, much 

of the settlement information in the Bevan database has already been disclosed 

in the public domain through probate court filings or was not confidential in the 

first place (e.g., bankruptcy trust claims).

Plaintiffs’ efforts to re-trade on the agreement to produce the Bevan database 

stand in contrast to how BASF handled the Cahill databases. At the October 26, 

2017 hearing, Your Honor made clear that BASF should produce the databases (even 

though BASF or Cahill could have lodged work product objections). BASF heard 

Your Honor and promptly contacted plaintiffs’ counsel to confirm that plaintiffs 

could use the databases for purposes of this case. Here, however, plaintiffs left the 

November 30, 2017 hearing and largely ignored Your Honor’s encouragement to 

produce the Bevan database. As a result, we now find ourselves in unnecessary 

briefing. 

At bottom, plaintiffs’ counsel should not be permitted to interfere with 

Bevan’s production of its client database—especially after Bevan expressed 

willingness to produce such information. The fact that evidence may be unfavorable 

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is not a reason for plaintiffs’ counsel to obstruct discovery from a third party. The 

database entries are plainly relevant, and BASF therefore respectfully requests that 

Your Honor order Bevan to produce them in unredacted form—just as BASF 

produced the Cahill databases in unredacted form.1

ARGUMENT

I. THE BEVAN FIRM SHOULD BE ORDERED TO PRODUCE ITS 

CLIENT DATABASE ENTRIES IN UNREDACTED FORM.

At the October 26, 2017 hearing, Your Honor made clear that Bevan was to 

produce or log its entire client files for 30 putative class members selected at random. 

10/26/17 Hr’g Tr. at 151:6-15. Your Honor selected this limited sample size “as a 

middle ground” to “ameliorate[]” Bevan’s claims of undue burden. Id. at 151:6-24. 

However, when the October 26 hearing took place, neither BASF nor Your Honor 

was aware that the Bevan Firm maintains a database with key information on all of 

the putative class members’ cases. 

The existence of Bevan’s database was one of the key facts BASF learned 

after the October 26, 2017 hearing. See 11/13/17 BASF Ltr. to Court (ECF No. 372). 

 

1 BASF did withhold two pieces of sensitive personal information: plaintiffs’ social 

security numbers and addresses. However, BASF did not withhold any substantive 

information regarding plaintiffs’ cases.

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Because the database exists in electronic form and contains information for scores 

of putative class members in one place, the Bevan Firm has no valid burden 

objection. Moreover, plaintiffs’ arguments concerning their claimed need for 

Cahill’s databases—which BASF has already produced—underscore that databases 

like these are relevant and discoverable. See, e.g., 10/26/17 Hr’g Tr. at 75:20-23.

Presumably because of the foregoing, Bevan agreed to produce its database, 

as described in Bevan’s November 29, 2017 submission to the Court. Shortly after 

the November 30, 2017 hearing, however, plaintiffs intervened and sought to block 

production of much of the information in Bevan’s database by redacting it. Bevan 

has now changed course and is following plaintiffs’ lead.2

A. The Bevan Database Contains Relevant, Discoverable Information.

As an initial matter, neither Bevan nor plaintiffs dispute that Bevan’s database 

contains relevant information. That is equally true of the fields plaintiffs now want 

 

2 BASF has met and conferred extensively with counsel for plaintiffs and Bevan 

regarding the production of Bevan’s client database, but the parties have reached an 

impasse on the present disputes. See E. Assaf Decl. ¶¶ 4-11. However, BASF was 

able to resolve other disputes, not before the Court, regarding the database. For 

instance, plaintiffs had previously sought to redact whether a given client was a 

plaintiff in litigation related to silica exposure but eventually withdrew that redaction 

proposal during the meet-and-confer process, acknowledging that if a particular 

plaintiff sought damages for silica exposure only, that plaintiff would not be part of 

the class in this case.

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to redact. First, as described above, plaintiffs and Bevan seek to redact the identity 

of the attorney or group of attorneys who referred each case to the Bevan Firm. This 

information is relevant—indeed, potentially critical—to class certification and to the 

merits of plaintiffs’ claims. The “referring attorney” field for several of the entries 

Bevan has already produced indicate that cases were referred to Bevan by the 

National Tire Workers Litigation Project and its attorneys. 

To be clear, one of the largest groups of putative class members referenced in 

the complaint are the Bevan plaintiffs. Given BASF’s work over the last several 

years, BASF believes that a large number of the Bevan cases are NTWLP-generated 

claims. It will be important to confirm those findings and determine, with certainty, 

that a large portion of the class is made up of NTWLP plaintiffs who may not have 

had any actual injury (and, indeed, whose cases may be frivolous). 

Federal courts have recognized that NTWLP cases were largely meritless and 

marred by fraud. See, e.g., Raymark Indus., Inc. v. Stemple, 1990 WL 72588, at *22 

(D. Kan. May 30, 1990) (recognizing that many of these cases were “in fact without 

merit,” that “most” of the claims “could not pass Rule 11 muster,” and that “the 

physicians couldn’t pass Fed. R. Evid. 703 muster”). Thus, whether a given case 

was referred to Bevan by the NTWLP is relevant to assessing whether that case 

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December 15, 2017

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against Engelhard had any legal or factual basis, whether plaintiffs’ counsel planned 

ahead of time to settle cases in groups for small settlements, and so on. See Ex. A 

(Am. Bar Ass’n, Comm’n on Asbestos Litig., Report to the House of Delegates, at 

6, 13 (Feb. 2003)) (“[F]or-profit litigation screenings began systematically 

generating tens of thousands of new non-malignant claims each year by individuals 

who had some degree of occupational asbestos exposure, but did not have, and 

probably would never get an impairing asbestos-related disease.”); id. at 10 (“Once 

a lawsuit is filed, unimpaired [NMRD] claimants may choose to resolve their claims 

for minimal values, executing a complete release. For the vast majority who never 

develop a disabling asbestos-related disease, the money is arguably a windfall.”).3

 

3 BASF initially understood that, in addition to the referring attorney, plaintiffs 

intended to redact the identity of physicians who provided the claimed diagnosis. 

Like the referring attorney, this information is relevant because the Bevan Firm used 

several of the physicians who performed “for-profit litigations screenings” to 

manufacture asbestos claims, including Drs. Ray Harron and Alvin Schonfeld. 

Because of their improper practices, these doctors were later investigated or barred 

from providing evidence to asbestos settlement trusts. See, e.g., In re Silica Prods. 

Liab. Litig., 398 F. Supp. 2d 563, 603-08, 630-40 (S.D. Tex. 2005); In re Asbestos 

Prod. Liab. Litig., 2011 WL 6181334, at *5 (E.D. Pa. Dec. 13, 2011); W.R. Grace 

Asbestos Tr., Policy on Physicians and Medical Facilities, 

http://wrgraceasbestostrust.com/wp-content/uploads/2014/02/policy-on-physicians5_28_091.pdf. During the meet-and-confer process, plaintiffs and Bevan confirmed 

that the identity of doctors and any film reads will now be included when the Bevan 

database is produced.

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Second, as noted above, most putative class members did not have cancer but 

instead had NMRD, which is a substantially different and less serious condition. As 

the American Bar Association has explained, most of these individuals “did not 

have, and probably would never get an impairing asbestos-related disease.” Ex. A 

(Am. Bar Ass’n, Comm’n on Asbestos Litig., Report to the House of Delegates, at 

6 (Feb. 2003)). As a result, the settlement considerations and amounts in an NMRD 

case are profoundly different from those in a mesothelioma or lung cancer case. 

NMRD plaintiffs and their counsel also would have had different expectations 

regarding whether to settle an NMRD case or take it to trial. Simply put, under any 

Rule 23 analysis, it would be relevant to know whether large swaths of the class have 

no injuries and thus had very different reasons for resolving their cases. 

Because of these disparities across cases, the nature of a given class member’s 

injury and prior settlements is relevant to determining that class member’s potential 

damages, as well as whether the claim is suitable for class-wide adjudication in light 

of the requirements of Rule 23. Although most of the putative class in this case is 

made up of individuals with NMRD, plaintiffs have produced no settlement data for 

those class members, and they are now trying to block discovery of it from a readily 

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accessible source. Those efforts improperly hinder BASF’s and the Court’s ability 

to determine whether the proposed class can be certified under Rule 23.

B. Plaintiffs’ and Bevan’s Objections Lack Merit.

Although plaintiffs and Bevan acknowledge that the Bevan database contains 

relevant information, they now want to redact information on the basis of newly 

asserted objections. None of those objections has merit. 

First, with respect to the identity of the referring attorney, Bevan has offered 

no principled objection for withholding the information. Plaintiffs have 

acknowledged that the identity of the referring attorney is not privileged or protected 

by any confidentiality restriction. Rather, plaintiffs’ only objection is that 

production of these database fields would constitute “premature” class discovery. 

That is not a valid basis to withhold the information, particularly when production 

of the Bevan database would impose only a minimal burden on plaintiffs and Bevan.

Second, with respect to class members’ settlements with asbestos bankruptcy 

trusts, plaintiffs’ only objection again is that production of this information would 

constitute “premature” class discovery. Plaintiffs do not and cannot claim that 

bankruptcy trust submissions and settlements are privileged. Plaintiffs also concede 

that documents related to bankruptcy trust claims and settlements are not 

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confidential. Indeed, Ohio law requires asbestos plaintiffs to “identify[] all existing 

asbestos trust claims made by or on behalf of the claimant” and provide “all trust 

claims material pertaining” to those claims. Ohio Rev. Code § 2307.952(A)(1)(a). 

Plaintiffs have shown no reason why information regarding their trust claims should 

not be produced.

Third, for settlements with private parties, Bevan relies solely on 

confidentiality objections. BASF is mindful of the Court’s ruling that Bevan need 

not produce its clients’ settlement agreements with defendants other than Engelhard, 

which was based on confidentiality concerns raised by plaintiffs, Bevan, and third 

party Vanderbilt Minerals. See 10/26/17 Hr’g Tr. at 221:22 - 222:4, 229:10-13. 

However, BASF’s review of the documents produced on behalf of the class 

representatives suggests that these confidentiality concerns are unfounded: much of 

the settlement information at issue here has already been disclosed publicly through 

filings in probate courts. For instance, settlement information (amounts and parties) 

for named plaintiff Pease has been publicly filed in probate court documents that 

plaintiffs have produced in this very case. See, e.g., Ex. B (P-WMS-0012270); Ex. 

C (P-WMS-0012274), Ex. D (P-WMS-0012278). Other class representatives filed 

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similar documents with probate courts, demonstrating that this was a common 

practice for clients of the Bevan Firm.

During the meet-and-confer process, BASF asked plaintiffs and Bevan to 

justify their confidentiality concerns with either a confidentiality agreement that 

governs the settlement information in the Bevan database or some other basis for 

withholding that information. Neither plaintiffs nor Bevan were able to provide such 

a justification. Instead, they relied on the Court’s prior directive that discovery on 

settlements should not extend to putative class members. That directive, however, 

was based on burden and confidentiality considerations that appear unfounded. 

C. If Plaintiffs and Bevan Withhold Information Regarding Putative 

Class Members, They Should Be Precluded From Relying On It 

Later.

As noted above, plaintiffs have offered no evidence or data regarding 

settlements or damages for putative class members who claimed NMRD. 

Information regarding NMRD cases is relevant to whether the proposed class 

satisfies the commonality, predominance, and typicality requirements of Rule 23, 

and plaintiffs’ refusal to produce that information will prejudice BASF’s ability to 

respond to plaintiffs’ motion for class certification. If plaintiffs withhold or block 

discovery into these issues, plaintiffs should be precluded from relying on NMRD 

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The Honorable Roberto A. Rivera-Soto

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case information or seeking NMRD-related damages later, including in expert 

discovery. 

CONCLUSION

For the reasons discussed above, Your Honor should compel Bevan to 

produce an unredacted version of its client database. 

Respectfully Submitted, 

s/ Justin T. Quinn

 Justin T. Quinn

Counsel for BASF Catalysts LLC

cc: All counsel of record (via ECF)

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