IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KIMBERLEE WILLIAMS, individually, as 

personal representative of the Estate of Charles 

L. Williams, deceased on behalf of said estate, 

and as representative of others similarly situated; 

NANCY PEASE, individually, as personal 

representative of the Estate of William Clark, 

deceased on behalf of said estate, and as 

representative of others similarly situated;

MARILYN L. HOLLEY, as personal 

representative of the Estate of Kathryn Darnell, 

deceased on behalf of said estate, and as 

representative of others similarly situated; 

DONNA WARE, individually, as personal 

representative of the Estate of Ralph Ware, 

deceased on behalf of said estate, and as 

representative of others similarly situated;

DONNETTE WENGERD, individually, as 

personal representative of the Estate of Jennifer 

Graham, deceased on behalf of said estate, and 

as representative of others similarly situated, and

ROSANNE CHERNICK, individually, as 

personal representative of the Estate of Steven 

Chernick, deceased on behalf of said estate, and 

as representative of others similarly situated,

 

Plaintiffs,

vs.

BASF CATALYSTS LLC,

CAHILL GORDON & REINDEL LLP,

CAHILL GORDON & REINDEL, A 

Partnership including a Professional 

Corporation,

THOMAS D. HALKET,

ARTHUR A. DORNBUSCH II,

GLENN HEMSTOCK,

CIVIL ACTION

No. 11-cv-01754-SRC -MAS

SECOND AMENDED CLASS 

ACTION COMPLAINT

Jury Trial Demanded

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HOWARD G. SLOANE (A/K/A “PETER 

SLOANE”),

IRA J. DEMBROW, 

SCOTT A. MARTIN,

JOHN DOE BUSINESS ENTITIES 1 to 100

are fictitious corporations, partnerships, or other 

business entities or organizations that BASF 

Catalysts LLC is responsible or liable for and 

whose identities are not presently known, which 

entities may have mined, milled, manufactured, 

sold, supplied, purchased, marketed, installed 

and/or removed asbestos or asbestos-containing 

materials, or alternatively, are responsible for, 

are the alter egos of, or are otherwise responsible 

for the conduct or liability of such entities;

JOHN DOE BUSINESS ENTITIES 101 to 

200 are the fictitious firms, corporations, 

partnerships, limited liability 

companies/associations or other business entities 

or organizations whose identities are not 

presently known, and who may have perpetrated, 

or are responsible for, are the alter egos of, or are 

otherwise responsible for the conduct or liability 

of those who perpetrated or acted in concert 

with, in furtherance of, or in conjunction with 

the other Defendants in the conduct, activities, 

acts and omissions set forth herein;

JOHN DOE LAWYERS 1 to 500 are the 

fictitious names of lawyers and law firms, legal 

professional corporations, legal professional 

partnerships, or other professional business 

entities or organizations, or their agents, 

employees, or servants, acting within the course 

and scope of their employment, or other 

individuals whose identities are not presently 

known, and who may have perpetrated, and/ or 

are responsible for, or are the alter egos of, or are 

otherwise responsible for the conduct or liability 

of those who perpetrated, aided and abetted, or 

acted in concert with, in furtherance of, or in 

conjunction with the other Defendants in the 

conduct, activities, acts and omissions set forth 

herein; and, 

Defendants JOHN DOE 1 to 500 are the 

fictitious names of individuals whose identities 

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are not presently known, who may have 

perpetrated, aided and abetted, conspired with, 

acted in concert with and/or are secondarily 

responsible or liable under law for the conduct or 

activities of those who may have acted in concert 

with, in furtherance of, or in conjunction with 

the other Defendants in the conduct, activities, 

acts and omissions set forth herein, including but 

not limited to employees, officers, agents, 

members and partners of named Defendants 

herein, jointly, severally and in the alternative,

 

Defendants.

Plaintiffs, Kimberlee Williams, Nancy Pease, Marilyn L. Holley, Donna Ware, 

Donnette Wengerd, and Rosanne Chernick, individually and on behalf of all other 

individuals similarly situated, for their claims and causes of action against Defendants

referenced herein, and based upon personal knowledge as to each Plaintiff’s own 

respective actions and, as to all other matters, upon information and belief based upon the 

investigation of counsel1, state and allege against the Defendants, jointly, severally and in 

the alternative the following:

 

1 The investigation of counsel includes the results of the spoliation claim discovery taken in Paduano v. Ace 

Scientific Supply Co., MID-L-2976-09 (N.J. Super. Ct. Law Div.) described infra. The Paduano case was 

one of several companion asbestos cases filed in Middlesex County, New Jersey in which the trial court 

permitted amendment of complaints to assert fraudulent concealment claims based upon alleged spoliation 

of evidence that is the subject of this suit. The Hon. Jack L. Lintner, P.J.A.D. (Ret.) was appointed as 

Discovery Master in Paduano and its companion cases to resolve privilege issues relating to discovery. As 

observed by Judge Lintner in his initial discovery opinion in these cases:

“Here, during the hearing on plaintiffs’ motion to amend, Judge McCormick specifically 

noted there was evidence that documents reflecting asbestos content in EMTAL’s talc were 

not produced over a period of twenty years and, as a result, plaintiffs’ cases were dismissed. 

In determining that plaintiffs had pled a prima facie case of fraudulent concealment, Judge 

McCormick intimated that plaintiffs should be able to pursue discovery as to why those 

documents had been concealed and not produced over the twenty-year period.”

Following the settlement of the Paduano case, its spoliation discovery was taken over and continued in the 

matter of Sampson v. 3M Co., et al., Docket No. MID-L-5384-11AS. Sampson ‘s discovery includes a 

currently sealed Special Discovery Masters proceeding presided over by the Hon. Justice Gary S. Stein 

(Ret.).

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Table of Contents

I. INTRODUCTION ...................................................................................................... 6

II. SUMMARY OF THE CASE...................................................................................... 7

III. PARTIES .............................................................................................................. 19

A. Plaintiffs................................................................................................................ 19

B. Defendants ............................................................................................................ 31

(1) The BASF Defendants ........................................................................................ 31

(2) The Cahill Gordon & Reindel Defendants.......................................................... 36

(3) The Fictitious Defendants ................................................................................... 45

IV. VENUE AND JURISDICTION. ................................................................................ 47

V. FACTS COMMON TO CLASS CERTIFICATION AND ALL COUNTS ............... 47

A. Asbestos Background Information ....................................................................... 47

B. Engelhard’s Emtal Talc Products and Asbestos ................................................... 48

C. The Westfall Asbestos Lawsuit’s Discovery......................................................... 51

D. The Westfall Case’s Settlement and Confidentiality Agreement and Origins of the 

BCAD Enterprise .......................................................................................................... 58

E. The Gathering and Spoliation of Inculpatory Evidence after the Settlement of the 

Westfall Case................................................................................................................. 61

F. BCAD Enterprise’s Twenty-Five Years Long Pattern and Practice of Misleading 

and Deceiving Asbestos Injury Claimants, Asbestos Claimants’ Counsel and Asbestos 

Courts............................................................................................................................ 64

G. Representative Misrepresentations and Material Omissions in Furtherance of the 

Fraudulent Asbestos Defense Scheme .......................................................................... 70

a. The 1988 and 1989 Misrepresentations and Material Omissions to Counsel 

for Tireworker Asbestos Injury Litigation Claimants Suing BASF in the United 

States Eastern District of Pennsylvania and Southeastern Pennsylvania State 

Courts.................................................................................................................... 73

b. November 19, 1990 Misrepresentations in BASF’s Answers to Plaintiffs’ 

Standard Interrogatory Answers in In Re: All "Asbestos" Cases Presently Pending 

Before and All Future Cases Assigned to the Honorable James E. Mies, Circuit 

Court Judge, (Circuit Court, Wayne County, Michigan). .................................... 79

c. November 1990 and October 1991 Misrepresentations in the Answers to 

Plaintiffs’ Master Interrogatories in In Re: Northern Ohio Tireworker Asbestos 

Litigation (C.P. Summit Cty., Ohio)..................................................................... 82

d. April 2002 and December 22, 2010 Misrepresentations and Material 

Omissions in Engelhard’s Correspondence to Asbestos Claimants’ Counsel and in 

Responses to Plaintiffs’ First Standard Set of Liability Interrogatories in the New 

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York City Asbestos Litigation Matter of Steven Chernick et. al. v. ABB Lumus 

Global, Inc. ........................................................................................................... 88

e. Cahill Gordon’s and BASF’s Continuing Fraudulent and Misleading 

Representations to the Representative Plaintiffs’ Attorneys, Bevan & Economus 

and Bevan & Associates LPA, Inc., Beginning in 1992....................................... 95

H. The Discovery and Uncovering of the Fraudulent Asbestos Defense Scheme .. 113

I. The BASF Perpetrators Undeterred Attempt to Mislead and Deceive the Paduano

Suit’s Plaintiffs’ Counsel Regarding Emtal Talc’s Asbestos Content........................ 120

J. BASF’s Admissions That False and Misleading Statements Were Given to 

Asbestos Claimants Over the Years as Part of BASF’s Asbestos Claim Defense ..... 121

K. Plaintiffs Learn They and Other Asbestos Claimants Similarly Situated Were 

Victimized and Harmed by the Fraudulent Asbestos Defense Scheme...................... 123

L. Defendants greatly benefited and profited from their participation in the 

Fraudulent Asbestos Defense Scheme. ....................................................................... 124

M. Defendants’ Clandestine Misconduct and Concealments Prevented Plaintiffs and 

Class Members From Discovering the Fraudulent Asbestos Defense Scheme Despite 

the Exercise of Diligence Thereby Warranting Tolling of Any Applicable Statute of 

Limitations. ................................................................................................................. 125

VI. CLASS ACTION ALLEGATIONS......................................................................... 128

VII. CAUSES OF ACTION ........................................................................................... 137

COUNT I - FRAUDULENT CONCEALMENT AND SPOLIATION ..................... 137

COUNT II - FRAUD AND DECEIT ......................................................................... 145

COUNT III - CIVIL CONSPIRACY ......................................................................... 149

VIII. DEMAND FOR RELIEF.................................................................................... 152

JURY DEMAND............................................................................................................ 154

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I. INTRODUCTION

1. Sometime in 1984, having settled an asbestos injury case and recognizing

its continued exposure to liability for damages caused by asbestos in its talc ore and talc 

products ( collectively referred to herein as “talc’), Defendant BASF Catalyst, LLC, then 

known as Engelhard Corporation (collectively “BASF”), together with the law firm of 

Cahill Gordon & Reindel, LLP (“Cahill Gordon”), devised and implemented a strategy 

to defend itself against asbestos injury claims by gathering all of the evidence of asbestos 

in its talc, storing or destroying the evidence and thereafter withholding and lying about 

its existence to mesothelioma, cancer and other victims suffering asbestos induced 

diseases, their counsel, and those courts presiding over asbestos injury claims. In short, 

after first gathering up and concealing or destroying documents and evidence establishing 

BASF’s talc contained asbestos, BASF and Cahill Gordon repeatedly lied to claimants 

and courts by denying BASF’s talc contained asbestos and that there ever existed any 

proof to the contrary. Because the very foundation of our judicial system is violated and 

eroded when conspirators like BASF and Cahill Gordon lie, fraudulently withhold 

evidence, destroy incriminating records, and mislead courts and opposing parties 

regarding essential facts that are only within their knowledge and control, this class 

action is essentially one based upon fraud upon the court. The harm these defendants and 

their confederates have inflicted upon both the numerous judicial systems and the 

asbestos claimants they targeted requires equitable relief. The scope and breadth of their 

conduct is extraordinary and such calls for extraordinary relief. There is no adequate 

remedy at law to address and redress the massive miscarriage of justice defendants’ 

corrupt spoliation of evidence, fraud, and deceit has caused. This action therefore seeks to 

provide the named plaintiffs and members of a class with an honest and full inquiry and 

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understanding of what happened, and thereafter a trial of the facts concerning defendants’

misconduct. The relief sought on behalf of the class is necessarily limited because the 

underlying asbestos exposure injury claims will need to be assessed in light of the fraud 

that BASF and Cahill Gordon perpetrated upon the public, asbestos victims and the 

courts. The class is cohesive in their cause and claims. The plaintiffs and class members, 

as well as the courts, relied upon the integrity of the judicial system and parties’ duties 

towards each other and the courts to abide by the rules of court and the rules of 

professional responsibility and perform their discovery obligations in good faith. Both 

courts and class members justifiably relied upon the knowing, uniform 

misrepresentations and material omissions by BASF and Cahill Gordon and to their 

detriment were deceived and harmed. Plaintiffs accordingly submit this Second Amended 

Complaint for equitable relief and for compensatory and punitive damages they are 

entitled to by virtue of the Defendants’ fraudulent concealment so that each of them and

every other member of the class ultimately will have an opportunity to receive their 

constitutional rights to one fair, honest and just day in court on their respective asbestos 

injury claims as well as any compensatory and punitive damages they are entitled to by 

virtue of the Defendants’ commission of tortious fraudulent concealment (spoliation).

II. SUMMARY OF THE CASE

2. In 1983, BASF’s Vice-President of Research and Development, Dr. Glenn 

Hemstock (“Hemstock), acknowledged during a deposition in an asbestos injury suit the 

presence of a number of tests BASF had produced during discovery that showed that its 

talc contained asbestos. The case in which he testified subsequently settled under terms 

that included a confidentiality order binding the plaintiff and his lawyer to non-disclosure 

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of discovery obtained in the suit. Dr. Hemstock thereafter circulated a memo directing the 

collection from BASF scientists and research staff of their entire work product regarding 

the content of BASF talc and talc products. The information was collected and then 

secreted away and/or destroyed by BASF and or its counsel Cahill Gordon. Over the 

next 25 years, BASF and Cahill Gordon then deceitfully and falsely denied the existence 

of evidence which they had in their possession or that they had previously destroyed 

which demonstrated that BASF talc in fact contained asbestos fiber. Their false denials of 

the prior or continuing existence of this evidence resulted in the obstruction of justice, a 

fraud upon courts, a fraud upon Plaintiffs and others similarly situated, and damage to the

rights of the plaintiffs. Defendants engaged in a pattern of fraudulent concealment, 

spoliation, misrepresentations and failures to truthfully and fully disclose material 

information concerning asbestos in certain products in asbestos claim matters in which

BASF and its predecessors were either a named defendant or a potential party (all of 

which conduct comprises the “Fraudulent Asbestos Defense Scheme”).

3. The Fraudulent Asbestos Defense Scheme at issue in this case was 

designed to end filed cases and ward off future potential asbestos claims against BASF 

that were or could be based upon contentions that talc ore and talc products mined or 

manufactured by BASF’s predecessors, Engelhard Corporation, Engelhard Industries, 

Engelhard Minerals & Chemicals Corporation, Minerals & Chemicals Phillip 

Corporation, Eastern Magnesia Talc Company, Porocel Corporation and Pita Realty 

Limited, contained asbestos. (When context requires, these BASF predecessor 

companies are collectively referred to herein as “Engelhard”).

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4. The targets and victims of the Fraudulent Asbestos Defense Scheme are 

and were persons who were: (a) exposed to various forms of asbestos fiber contained in 

Engelhard’s talc ore and talc products and who were injured as a result by an asbestos 

related disease; and/or, (b) an exposed person’s family members or personal 

representatives who claimed or could claim damages for or through these exposed 

individuals. (These victims are collectively referred to herein as the “Asbestos Claimant 

Class” or the “Class.”) 

5. As described in greater detail below, Plaintiffs and the Asbestos Claimant 

Class, the lawyers representing them, and, in some cases, the courts presiding over class 

members’ lawsuits, were systematically supplied with uniform material 

misrepresentations and omissions by BASF and its in-house and outside lawyers, 

including Cahill Gordon, regarding: (a) the existence and dangerous nature of asbestos in 

Engelhard’s talc ore and products; and/or (b) the existence of evidence that the 

defendants had in their possession, or destroyed, demonstrating that Engelhard talc or and 

products contained asbestos. As a direct and proximate result of the Defendants’ 

spoliation, deceptive acts, false statements and material omissions, the constitutional and 

property rights of the Plaintiffs and others similarly situated to them were lost or 

significantly impaired when, in natural and reasonable reliance upon Defendants’ 

deceptions, made as they were in such forms including verified answers to discovery 

requests or affidavits signed under oath by experts and corporate representatives, they 

either: (a) did not pursue their claims against BASF; (b) voluntarily ended their claims 

against BASF without receiving any or full, fair and just compensation (in some cases 

Class Members were given a nominal or token settlement in exchange for a full release of 

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BASF); or (c) based upon the misrepresentations and omissions to courts, suffered an 

involuntary termination of their asbestos injury claims against BASF. 

6. As a result of Defendants’ Fraudulent Asbestos Defense Scheme as more 

fully set out below, Plaintiffs and members of the Asbestos Claimant Class were 

purposely deceived and defrauded into believing that there was no evidence that 

Engelhard’s talc contained asbestos and/or that Engelhard’s talc did not contain asbestos 

and consequently either: (a) terminated or abandoned their asbestos injury claims against 

BASF; (b) accepted a nominal financial settlement of their claim; or (c) suffered a 

dismissal of their lawsuits where and when the misrepresentations at issue were 

submitted by the Defendants to presiding courts in the form of motions seeking dismissal 

of BASF. Plaintiffs and each Class Member thereby suffered a significant loss of their 

property. Each has been deprived of fair, full and just compensation as was their right 

under law. Furthermore, Defendants’ egregious misconduct in spoliating evidence and 

thereafter systematically and repeatedly misrepresenting core facts about the existence of 

asbestos in BASF’s talc has seriously undermined and impugned the integrity and 

validity of the administration of justice, thereby depriving each Plaintiff and Class 

Member of his or her right to a fair, honest and just judicial proceeding. 

7. A key integral part of Defendants’ Fraudulent Asbestos Defense Scheme 

was BASF’s widespread spoliation of material evidence and documents establishing or 

tending to establish that Engelhard’s talc ore and products contained asbestos fibers. This 

spoliation of material evidence overtly began in and around 1984 At that time internal 

Engelhard company documents and other evidence relating to the existence and nature of 

asbestos in Engelhard’s talc ore and talc product lines were systematically gathered up 

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from employees at Engelhard’s laboratories and offices by BASF’s management at the 

instigation and direction of BASF’s legal department, including its then General Counsel, 

Arthur A. Dornbusch, II, Esq. This spoliation of evidence, on information and belief, was

committed with the knowing aid and assistance of BASF’s national asbestos counsel, 

Cahill Gordon, including then Cahill Gordon associate attorney and later partner Howard 

G. (“Peter”) Sloane, Esq. This evidence was then either destroyed by the defendants or 

secreted away. Despite inquiry in a prior New Jersey state court proceeding in which the 

existence of the spoliation was first uncovered, the fate and current whereabouts of this 

evidence remain unaccounted for by BASF. 

8. The collection and spoliation of this evidence occurred following BASF’s 

in-house counsel (e.g.- Dornbusch, Thomas D. Halket, Esq.) and outside defense 

attorneys (Cahill Gordon, including Sloane) witnessing first hand or otherwise knowing 

about sworn deposition testimony of Engelhard’s research and management employees, 

including Dr. Hemstock’s, that acknowledged the existence and contents of documents 

and scientific test results that reported the presence of asbestos in Engelhard’s talc ore 

and products, including documents and test results produced by Engelhard in connection 

with a Rhode Island asbestos injury lawsuit. In settling the Rhode Island suit, BASF 

obtained an agreement in the form of a release requiring that the Rhode Island plaintiff 

and plaintiff’s attorney keep the settlement and all discovery obtained during the case 

confidential.

9. BASF’s collection and spoliation of asbestos evidence in 1984 occurred 

at a time and under circumstances that BASF’s management and its in-house and outside 

attorneys (including Dornbusch, Sloane and Halket) knew BASF was being currently

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sued on asbestos claims and was or would in the future be the subject of additional 

asbestos injury lawsuits and claims. BASF’s management and attorneys also knew that 

the materials collected in 1984, including the transcripts of the inculpating testimony and 

documents referenced during the Engelhard employee depositions in the Rhode Island 

asbestos case, were then or could foreseeably be relevant to such asbestos injury lawsuits 

and claims. The collection, destruction and/or other disposition of this material was 

undertaken by BASF in bad faith, with the intent to obstruct justice, with the intent to 

deceive and harm asbestos claimants, such as Plaintiffs, and not for legitimate document 

retention management purposes.

10. With the inculpating evidence relating to Engelhard’s talc ore and 

products destroyed or secreted away, the perpetrators of BASF’s Fraudulent Asbestos 

Defense Scheme then began to uniformly, systematically and repeatedly represent in 

sworn and unsworn statements in asbestos injury claim matters that: (a) Engelhard’s talc 

ore and talc products did not contain any asbestos; and/or (b) that no evidence existed to 

the contrary. Over the ensuing twenty-five (25) years, from 1984 until late 2009—when 

by chance the spoliation. fraudulent concealment and deceit were uncovered during a 

deposition of a former Engelhard chemist whose daughter had developed mesothelioma 

from exposure to, among other products, BASF’s talc ore and products—BASF and its 

lawyers persistently and uniformly lied to, misled, and withheld material evidence that

Engelhard’s talc contained asbestos from numerous (in the thousands) asbestos injury 

claimants, asbestos claimant lawyers, and asbestos injury claimant representatives, as 

well as to courts presiding over asbestos injury claims. And even when BASF became 

aware that the Fraudulent Asbestos Defense scheme was beginning to become uncovered

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through happenstance, such as it did in or about 2009, the scheme was nevertheless

allowed to continue on into 2011 as set forth herein. Notably not one of the defendants 

herein, including individual defendants who unquestionably knew there was evidence the 

talc contained asbestos such as Dornbusch, Sloane and Halket, have ever taken any step 

or measure whatsoever to affirmatively reveal the existence of, or renounce their 

participation in, the Fraudulent Asbestos Defense Scheme or to arrest, cure or mitigate 

the injuries and damage it caused or could cause to the plaintiffs, class members, 

presiding courts and the administration of justice. The fraud and the harm unleashed by 

the defendants in furtherance of the Fraudulent Asbestos Defense Scheme thus continues 

on to this date. 

11. The Fraudulent Asbestos Defense Scheme at issue herein was devised, 

implemented, managed, directed, and controlled in large and substantial part at BASF’s 

headquarters in the State of New Jersey. It was executed through the means and 

mechanisms of a conspiracy and a corrupted association (the “BCAD Enterprise”) which 

was comprised of and operated by, at least so far as is presently known: (a) BASF; (b) 

BASF management (such as Dr. Hemstock) and in-house attorney employees (including 

Dornbusch and Halket); and, (c) the law firm and lawyers of Cahill Gordon (including its 

partner Sloane and its senior associate Ira J. Dembrow, Esq.), which firm and its lawyers 

until 2010 or so had been BASF’s national asbestos claim defense counsel for at least 

twenty-five years.

12. The BCAD Enterprise’s Fraudulent Asbestos Defense Scheme was highly 

successful in terminating and warding off numerous asbestos injury claims and lawsuits 

against BASF, as well as enabling Defendants to settle asbestos injury claims against 

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BASF with nominal or token payments in exchange for a release or agreement not to sue 

when doing so was advantageous to BASF. As was Defendants’ design, purpose and 

intent, the spoliation and fraudulent misrepresentation and omissions scheme misled 

numerous asbestos injury claimants and their counsel, including the representative 

Plaintiffs and their counsel, into naturally and reasonably believing there was no evidence 

that Engelhard’s talc products contained asbestos that could support an injury 

compensation claim against BASF. The Plaintiffs’ and other Class Members’ ultimate 

response to BASF, Cahill Gordon and the BCAD Enterprise’s spoliation and deceitful 

conduct was likewise uniform, natural, and direct, as well as consistent with the intent of 

the Defendants. Depending upon the procedural status of their claim, Plaintiffs and 

members of the Class either dropped their claims, settled for a token amount in exchange 

for a release or covenant not to sue, suffered an involuntary dismissal of their claim or in 

some cases did not commence a law suit or other claim (such as workers’ compensation) 

against BASF based upon exposure to BASF talc; all to their substantial economic 

detriment and loss. In addition to the loss of their asbestos injury claim or chose in action, 

Plaintiffs and others were not fairly and fully compensated by BASF for their medical 

expenses, loss of earnings, and other economic and non-economic losses. Defendants’

egregious misconduct further seriously undermined and impugned the integrity and 

validity of the administration of justice, thereby depriving each Plaintiff and Class 

Member of his or her right to a fair, honest and just judicial proceeding.

13. Compounding the harm caused to Plaintiffs and the Class by the 

Defendants’ spoliation of evidence and deceptive misconduct, the passage of time has 

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greatly hampered and impaired, and in some cases eliminated, Plaintiffs’ and Class 

Members’ access to evidence needed to establish their underlying asbestos injury claims.

14. The existence and/or scope of Defendants’ Fraudulent Asbestos Defense 

Scheme and BCAD Enterprise’s existence and corrupt activities was neither known nor 

reasonably knowable to Plaintiffs until 2010 or 2011, when representative Plaintiffs were 

first advised of the Defendants’ Fraudulent Asbestos Defense Scheme through Plaintiffs’

asbestos claim counsel who, in turn, had only shortly before that time learned of the 

scheme as a result of being contacted by other lawyers who were investigating spoliation 

claims against BASF in connection with then pending litigation in New Jersey state court, 

or in connection with the investigation of this matter. While the full extent of the fraud 

and spoliation is still unknown, upon information and belief it involves thousands of 

asbestos claimants who were the targets and victims of the scheme. This information is 

known to the Defendants.

15. The spoliation of evidence and other elements and aspects of the 

Fraudulent Asbestos Defense Scheme, as well as BCAD Enterprise’s existence, all of 

which date back to the mid-1980’s, were uncovered only by chance in 2009 when 

deposition testimony by a former Engelhard employee chemist, Mr. David Swanson, 

provided some alarming revelations. His testimony not only contradicted BASF’s and its 

counsel’s representations that Engelhard’s talc did not contain any asbestos, but revealed 

the fact that during Swanson’s employment with Engelhard material documents relating 

to the talc were gathered from him and other research department employees and 

destroyed (or otherwise disposed of or secreted away) at the direction of Engelhard’s 

legal department. Mr. Swanson was deposed in connection with a New Jersey Superior 

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Court Law Division asbestos lawsuit captioned Paduano v. Ace Scientific Supply Co., 

MID-L-2976-09 (N.J. Super. Ct. Law Div.) (“Paduano suit”). The Paduano suit was 

filed by Mr. Swanson’s daughter, a mesothelioma victim claiming asbestos injury caused 

by BASF’s talc products as well as other exposures. During his deposition, Mr. Swanson 

testified that while he was employed in Engelhard’s research department, test results, 

laboratory notebooks and other documents concerning talc products were gathered from 

all Engelhard research and testing personnel, including his own written materials, and 

never returned. This testimony generated an investigation into BASF’s and Cahill 

Gordon’s spoliation of documents which in turn revealed the facts and conduct that are

the subject of this lawsuit. Accordingly, the existence of the Fraudulent Asbestos Defense 

Scheme, the existence of the BCAD Enterprise’s existence and the activities and overt

actions of the corrupt scheme are not, and were not, known to members of the Class 

despite the diligent efforts of their counsel; which ignorance of these wrongs is a natural 

consequence of the defendants’ fraud and will continue on unless and until Class 

Members are notified and informed of the circumstances and their potential claims by an 

appropriate notice.

16. This suit accordingly seeks classwide declaratory and equitable relief 

correcting and redressing Defendants’ egregious misconduct, obstruction of justice and 

fraud upon the courts and the corresponding resulting injuries to the judicial process and 

abridgement of economic and personal rights inflicted upon thousands of members of the 

Asbestos Claimant Class (excluding those who opt out), including:

a. A declaratory judgment that a fraud and/or fraudulent concealment and 

spoliation of material evidence relating to the existence of asbestos BASF’s talc has 

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been committed by the Defendants to the detriment of the class members with 

corresponding mandatory injunctive relief requiring Defendants to locate and notify 

Class Members (or where deceased or incompetent, their personal representatives or 

their next of kin) of this finding and the corresponding need to promptly consult with 

counsel regarding their legal rights as a result;

b. Declaratory and equitable relief addressing and alleviating any impairment 

of Plaintiffs’ and Class Members’ ability to gather and present evidence establishing 

their underlying asbestos injury claims that Defendants’ spoliation and ensuing 

misrepresentations and material omissions proximately caused; 

c. A determination and declaration of the need for and ordering execution of 

a pending action notice program paid for by Defendants informing Class Members or 

their representatives of the pendency of this action, BASF’s and Cahill’s alleged 

misconduct and the import and possible impact of same on their present or former 

asbestos injury claims, and their rights to proceed against Defendants;

d. A declaration, injunction or decree imposing a constructive trust upon 

BASF’s and Cahill Gordon’s property and requiring BASF and Cahill Gordon to each 

render an accounting to the Court of all fees, revenues, costs, insurance proceeds, and 

expense savings relating to Plaintiff s and absent class member’s asbestos injury 

claims. 

e. A determination and declaration of BASF’s and Cahill Gordon’s liability 

for disgorgement of revenues, profits and money unjustly earned or received from 

the commission of the frauds upon the courts, Plaintiffs and members of the class

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and/or the commission of proscribed activities described below, together with a 

determination and decree on the disposition and distribution of such disgorgement;

f. A determination of Defendants’ liability for compensatory and punitive 

damages to Plaintiffs and the Class relating to the fraudulent concealment and 

spoliation of evidence relevant and material to establishing asbestos injury claims 

against BASF;

g. A determination and declaration that BASF’s and Cahill Gordon’s 

communications relating to the their fraudulent conduct and/or the spoliation of 

evidence are not privileged attorney-client communication under the New Jersey 

crime-fraud exception and an injunction barring and prohibiting either from asserting 

same are privileged in any proceeding involving any class members asbestos injury 

claims;

h. An injunction requiring BASF and Cahill Gordon to fund the maintenance 

of an independent trust established by the Court for the purpose of locating, 

collecting, housing, archiving and making available BASF’s asbestos documents and 

materials to Plaintiffs, class members and further requiring BASF and Cahill Gordon 

to assist and cooperate fully with the Court appointed trustees in the accomplishment 

of these remedial objectives, including providing information, waivers of privilege 

and waivers of confidentiality rights where applicable;. 

i. A permanent injunction enjoining the Defendants from further 

misrepresenting and suppressing evidence relating to BASF’s asbestos liability; and,

j. Such other relief as may be available and just. 

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III. PARTIES

A. Plaintiffs

17. Plaintiff Kimberlee Williams (“Williams”) is an individual and a citizen 

of the State of Ohio, residing at 2299 Winter Parkway, Apt. 235, Cuyahoga Falls, Ohio 

44221. At all times relevant herein she was married to the late Charles L. Williams, who 

died on September 7, 1998. She is the personal representative of Mr. Williams’ estate. 

Plaintiff Williams brings this suit in her individual capacity, as personal representative of 

the Estate of Charles L. Williams, deceased, on behalf of said Estate, and as a Class

representative of a Class of others similarly situated as defined below. 

18. Williams’ deceased husband, Charles L. Williams, was a tire worker 

employed at Goodyear Tire & Rubber in Akron, Ohio from 1950 to 1985. During that 

time he was exposed during his employment to asbestos containing talc products mined, 

manufactured, processed, sold and/or distributed by Engelhard. That exposure 

proximately caused him to develop asbestos injuries, including asbestosis and lung 

cancer, which injuries in turn proximately led to and caused his death on September 7, 

1998. Prior to his death, Plaintiff’s decedent suffered and endured great pain and 

suffering and great mental anguish and emotional distress. Plaintiff Williams’ decedent 

while alive, and his estate thereafter following his death, as well as Plaintiff Williams 

herself, incurred substantial costs and expenses in obtaining medical treatment and care 

of Mr. Williams’ asbestos injuries. Plaintiff Williams and the Estate of Charles L. 

Williams, deceased, also sustained loss of income, earning capacity, funeral expenses and 

pecuniary losses. Plaintiff Williams also suffered a loss of consortium, services and 

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society of her husband before his death and a loss of services following his death. All of 

these injuries, losses and damages were compensable asbestos injury claims.

19. In 1992, Plaintiff Williams and her husband commenced an asbestos 

injury lawsuit in the Court of Common Pleas, Cuyahoga County, Ohio, against BASF’s 

predecessor, Eastern Magnesia and Pita Reality; said suit captioned Charles Williams and 

Kimberlee Williams v. B. F. Goodrich Company, et al., Case No. 229108. The case was 

removed to the United States District Court for the Northern District of Ohio, where it 

was made a tag-a-long case in the Asbestos Multi-District Litigation case assigned to the 

late Honorable Charles R. Weiner in the United States District Court of the Eastern 

District of Pennsylvania. During the pendency of that lawsuit, and reasonably relying 

and acting upon the misrepresentations and material omissions made by Defendants to 

their attorneys and representatives, Dale S. Economus ,Esq and Thomas W. Bevan ,Esq., 

regarding Engelhard’s talc products, including without limitation the failure to disclose 

evidence indicating Engelhard’s talc contained asbestos fibers, as set forth more 

particularly below, Plaintiff Williams and her husband, on or about March 2,1993, filed 

and later served by U.S. Mail a voluntarily partial dismissal of their lawsuit dismissing 

their asbestos injury claims against Eastern Magnesia without receiving full, fair and 

adequate compensation for their asbestos injury claims against BASF’s predecessors.

The partial dismissal was ordered and entered by Judge Weiner on or about March 16, 

1993. At no time thereafter did any of the Defendants take any affirmative step or 

measure to retract, rescind or cure the misrepresentations and material omissions made to 

Economus, Bevan or their law firms. Plaintiff Williams and her husband did not know 

that she and her husband had been the victim of Defendants’ Fraudulent Asbestos 

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Defense Scheme described herein while her husband was alive, and she did not learn of 

such fact until late 2010/early 2011, when she was first informed of same by her attorney, 

Thomas W. Bevan, Esquire after he was informed of the Fraudulent Asbestos Defense 

Scheme by the Paduano case’s counsel in the course of their investigation into the 

spoliation and fraudulent defense scheme. Had Plaintiff’s counsel and Plaintiff known 

about the existence of the spoliation described more particularly herein and the existence 

of evidence that BASF’s talc and talc products contained asbestos, the dismissal would 

not have been entered as to BASF (Engelhard at the time), and in view of the 

circumstances Plaintiff would have either had her day in court, or obtained a substantial 

settlement amount.

20. Plaintiff Nancy Pease (“Pease”) is an individual and a citizen of the State 

of Ohio, residing at 3212 Bent Oak Trail, Ravenna, Ohio 44266. She is a daughter of the 

late William F. Clark, deceased, and has been appointed executrix of his Estate. Plaintiff 

Pease brings this suit in her individual capacity, as personal representative of the Estate 

of William F. Clark, deceased, on behalf of the Estate, and as a Class representative of a 

Class of others similarly situated as defined below. 

21. Plaintiff Pease’s decedent, William F. Clark, was a tire production worker 

employed at B. F. Goodrich Company in Akron, Ohio from 1952 to 1983. During that 

time he was exposed through his employment to asbestos containing talc products mined, 

manufactured, processed, sold and/or distributed by Engelhard. That exposure 

proximately caused him to develop asbestos injuries, including mesothelioma, which 

injuries proximately led to and caused his death on May 5, 1994. Prior to his death, 

Plaintiff Pease’s decedent suffered and endured great pain and suffering and great mental 

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anguish and emotional distress. Plaintiff Pease’s Decedent while alive, and his estate 

following his death, incurred substantial costs and expenses in obtaining medical 

treatment and care of Mr. Clark’s asbestos injuries and mesothelioma. The Estate of 

William Clark, deceased sustained loss of income, earning capacity, funeral expenses and 

pecuniary losses. All of these injuries, losses and damages were compensable asbestos 

injury claims.

22. On or about June 21, 1995, Plaintiff Pease commenced an asbestos injury 

lawsuit in the Court of Common Pleas, Cuyahoga County, Ohio against BASF’s 

predecessor, Eastern Magnesia, naming same as a defendant in accordance with the 

accepted asbestos practice in that area in view of settlement programs that potentially 

responsible product manufacturers or suppliers were negotiating or had developed; said 

suit captioned Nancy Pease, executrix of the Estate of William Clark, deceased v. B. F. 

Goodrich Company, et al., Case No. CV-95-291272. This suit replaced a Summit 

County, Ohio, Court of Common Pleas asbestos personal injury suit commenced by 

Plaintiff Pease’s parents during their lifetimes which was captioned William F. Clark et 

al. v. Owens Corning Fiberglass Corp. et al., Case No. ACV-94-04-1107. During the 

pendency of Plaintiff Pease’s lawsuit, and reasonably relying and acting upon the 

misrepresentations and material omissions of Defendants regarding Engelhard’s talc 

product and the absence of any evidence indicating Engelhard’s talc contained asbestos 

fibers that were made to her attorney and representative, Thomas W. Bevan, Esq., as set 

forth more particularly herein, Plaintiff on or about December 4, 1998 voluntarily 

dismissed the Estate’s lawsuit against Eastern Magnesia, as part of a nominal amount 

settlement with a group of talc supplier defendants, without receiving full, fair and 

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adequate compensation for the Estate’s asbestos injury claims against BASF’s 

predecessors. The fraudulently obtained notice of dismissal in her case was served upon 

all counsel of record, including Defendant Cahill Gordon, on or about December 4, 1996, 

by U.S. Mail. Plaintiff did not know that she and her father’s estate had been the victims 

of Defendants’ Fraudulent Asbestos Defense Scheme described herein until late 

2010/early 2011, when she was first informed of same by her attorney, Thomas W. 

Bevan, Esquire. Had Plaintiff’s counsel and Plaintiff known about the existence of the 

spoliation described more particularly herein and/or the existence of evidence that 

BASF’s talc and talc products contained asbestos, the settlement demand would have 

been higher and/or Plaintiff would have taken her case to trial. Plaintiff is willing and

offers to return the portion of the settlement contributed by BASF, or such other amount 

the Court deems fair and just, in order to be restored to the status quo ante the settlement 

with BASF.

23. Plaintiff Marilyn L. Holley (“Holley”) is an individual and a citizen of the 

State of Ohio, residing at 931 Morningstar, Akron, Ohio 44307. Holley is a daughter of 

Kathryn Darnell, deceased. She has been appointed executrix of the Estate of Kathryn 

Darnell, deceased. Plaintiff Holley brings this suit in her individual capacity, as personal 

representative of the Estate of Kathryn Darnell, deceased, on behalf of the estate, and as a 

Class representative of a Class of others similarly situated as defined below. 

24. Plaintiff Holley’s decedent, Kathryn Darnell, was a rubber industry 

worker employed at B. F. Goodrich Company in Akron, Ohio from 1969 to 1987. 

During that time she was exposed through her employment to asbestos containing talc 

products mined, manufactured, processed, sold and/or distributed by Engelhard. That 

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exposure proximately caused her to develop asbestos injuries, including mesothelioma, 

which proximately led to and caused her death on June 7, 2001. Prior to her death 

Plaintiff Holley’s decedent suffered and endured great pain and suffering and great 

mental anguish and emotional distress. Plaintiff Holley’s decedent while alive and her 

Estate following her death incurred substantial costs and expenses in obtaining medical 

treatment and care of her asbestos injuries and mesothelioma. Plaintiff Holley’s 

decedent, Kathryn Darnell, during her life and her estate following her death sustained 

loss of income, earning capacity, funeral expenses and pecuniary losses. All of these 

injuries, losses and damages were compensable asbestos injury claims.

25. On or about November 14, 2000, Plaintiff Holley’s decedent, Kathryn 

Darnell, while alive, commenced an asbestos injury lawsuit in the Court of Common 

Pleas, Cuyahoga County, Ohio against BASF’s predecessor, Eastern Magnesia, naming 

same as a defendant in accordance with the accepted asbestos practice in that area in view 

of settlement programs that potentially responsible product manufacturers or suppliers 

were negotiating or had developed; said suit captioned Kathryn Darnell v. B. F. Goodrich 

Company, et al., Case No. CV-423183. Prior to her death on June 7, 2001, and 

reasonably relying and acting upon the misrepresentations and material omissions of 

Defendants regarding Engelhard’s talc product and the absence of any evidence 

indicating Engelhard’s talc contained asbestos fibers that were made to her attorney and 

representative, Thomas W. Bevan, Esquire, as set forth more particularly herein, Plaintiff

Holley’s decedent on or about May 8, 2001, voluntarily dismissed her lawsuit against 

Eastern Magnesia as part of a nominal settlement with a group of talc supplier defendants 

without receiving full, fair and adequate compensation for her asbestos injury claims 

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against BASF’s predecessors. Kathryn Darnell during her lifetime did not know that she 

had been the victim of Defendants’ Fraudulent Asbestos Defense Scheme described 

herein. Plaintiff Holley did not know and learn that her decedent was a victim of 

Defendants’ Fraudulent Asbestos Defense Scheme until late 2010/early 2011, when she 

was informed of same by her attorney, Thomas W. Bevan, Esquire. Had Plaintiff’s 

counsel and Plaintiff known about the existence of the spoliation described more 

particularly herein and/or the existence of evidence that BASF’s talc and talc products 

contained asbestos, the settlement demand would have been higher and/or Plaintiff would 

have taken her case to trial. Plaintiff is willing and offers to return the portion of the 

settlement contributed by BASF, or such other amount the Court deems fair and just, in 

order to be restored to the status quo ante the settlement with BASF.

26. Plaintiff Donna Ware (“Ware”) is an individual and a citizen of the State 

of Ohio, residing at 441 Randolph Road, Mogadore, Ohio 44260. At all times relevant 

herein she was married to Ralph Ware, who died on December 1, 2002. Plaintiff Ware is 

the Executrix of Mr. Ware’s Estate. Plaintiff Ware brings this suit in her individual 

capacity, as personal representative of the Estate of Ralph Ware, deceased, on behalf of 

said Estate, and as a Class representative of a Class of others similarly situated as defined 

below. 

27. Plaintiff Ware’s deceased husband, Ralph Ware, was employed at 

Goodyear Aerospace in Akron, Ohio from 1950 to 1985 as, among other things, a 

compound mixer. During that time he was exposed in the course of his occupation to 

asbestos containing talc products mined, manufactured, processed, sold and/or distributed 

by Engelhard. That exposure proximately caused him to develop asbestos injuries, 

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including mesothelioma, which proximately led to and caused his death on December 1, 

2002. Prior to his death Plaintiff Ware’s decedent suffered and endured great pain and 

suffering and great mental anguish and emotional distress. Plaintiff Ware’s decedent,

while alive, his estate thereafter, and Plaintiff Ware herself, also incurred substantial 

costs and expenses in obtaining medical treatment and care of Mr. Ware’s asbestos 

injuries. Plaintiff Ware’s husband’s estate sustained loss of income, earning capacity, 

funeral expenses and pecuniary losses. Plaintiff Ware also suffered a loss of consortium, 

services and society of her husband. All of these injuries, losses and damages were 

compensable asbestos injury claims.

28. On or about May 29, 1997, Plaintiff Ware and her deceased husband 

commenced an asbestos injury lawsuit in the Court of Common Pleas, Cuyahoga County, 

Ohio against BASF’s predecessors, Eastern Magnesia and Pita Reality, naming same as a 

defendant in accordance with the accepted asbestos practice in that area in view of 

settlement programs that potentially responsible product manufacturers or suppliers were 

negotiating or had developed; said suit captioned Ralph Ware v. B. F. Goodrich 

Company, et al., Case No. 02-475504. Reasonably relying and acting upon the 

misrepresentations and material omissions of Defendants regarding Engelhard’s talc 

product and the absence of any evidence indicating Engelhard’s talc contained asbestos 

fibers that were made to their attorney and representative, Thomas W. Bevan, Esquire, as 

set forth more particularly herein, Plaintiff Ware and her husband’s estate in 2003 

voluntarily dismissed their lawsuit against Engelhard’s predecessors as part of a multiplaintiff, multi-talc defendant settlement that BASF’s predecessors were party to, without 

receiving any full, fair and adequate compensation for their asbestos injury claims against 

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BASF’s predecessors. Plaintiff Ware and her husband did not know that she and her 

husband had been the victims of Defendants’ Fraudulent Asbestos Defense Scheme 

described herein while her husband was alive and she did not learn of such fact until late 

2110/early2011, when she was informed of same by her attorney, Thomas W. Bevan, 

Esquire. Had Plaintiff’s counsel and Plaintiff known about the existence of the spoliation 

described more particularly herein and/or the existence of evidence that BASF’s talc and 

talc products contained asbestos, the settlement demand would have been higher and/or 

Plaintiff would have taken her case to trial. Plaintiff is willing and offers to return the 

portion of the settlement contributed by BASF, or such other amount the Court deems 

fair and just, in order to be restored to the status quo ante the settlement with BASF.

29. Plaintiff Donnette Wengerd (“Wengerd”) is an individual and a citizen of 

the State of Ohio, 3147 S. Medina Line Road, Norton, Ohio 44203. She is the daughter 

of the late, Jennifer Graham, deceased, and has been appointed executrix of her estate.

Plaintiff Wengerd brings this suit in her individual capacity, as personal representative of 

the Estate of Jennifer Graham, deceased, on behalf of the estate, and as a Class

representative of a Class of others similarly situated as defined below. 

30. Plaintiff Wengerd’s decedent, Jennifer Graham, was a tireworker 

employed at Goodyear Tire and Rubber Company in Akron, Ohio from 1974 to 1978. 

During that time Plaintiff’s decedent was exposed through the decedent’s employment to 

asbestos containing talc products mined, manufactured, processed, sold and/or distributed 

by Engelhard. That exposure proximately caused Ms. Graham to develop asbestos 

injuries, including mesothelioma, which injuries proximately led to and caused her death 

on July 21, 2008. Prior to her death, Plaintiff Wengerd’s decedent suffered and endured 

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great pain and suffering and great mental anguish and emotional distress. Plaintiff 

Wengerd’s decedent while alive, and her Estate following her death, incurred substantial 

costs and expenses in obtaining medical treatment and care of Ms. Graham’s asbestos 

injuries and mesothelioma. The Estate of Jennifer Graham sustained loss of income, 

earning capacity, funeral expenses and pecuniary losses. All of these injuries, losses and 

damages were compensable asbestos injury claims.

31. On or about May 10, 2008, Plaintiff Wengerd’s decedent during her life 

commenced an asbestos injury lawsuit in the Court of Common Pleas, Cuyahoga County, 

Ohio against BASF, naming same as a defendant in accordance with the accepted 

asbestos practice in that area in view of settlement programs that potentially responsible 

product manufacturers or suppliers were negotiating or had developed; said suit 

captioned Jennifer Graham et al. v. Goodyear Tire Company, et al., Case No. 656405. In 

or around January, 2009, after Plaintiff Wengerd’s decedent had refused to voluntarily 

dismiss her mesothelioma injury lawsuit against BASF as it had requested through 

counsel in a letter mailed on or about November 12, 2008, BASF electronically filed and 

served a Motion for Summary Judgment brief and, later, a reply brief in the Court of 

Common Pleas in which it misrepresented to the presiding trial court, as set forth more 

particularly hereinafter, that Plaintiff Wengerd could not establish her case against BASF 

because, inter alia, its predecessor’s, Engelhard, talc did not contain any asbestos. On or 

about June 18, 2009, the Court of Common Pleas of Cuyahoga granted BASF’s Motion 

for Summary Judgment and dismissed Plaintiff Wengerd’s mesothelioma lawsuit against 

BASF, thereby denying her full, fair and adequate compensation for her asbestos injury 

claims against BASF. Plaintiff Wengerd did not know that she and her mother’s estate 

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had been the victim of Defendants’ Fraudulent Asbestos Defense Scheme described 

herein until 2010/early 2011, when she was first informed of same by her attorney, 

Thomas W. Bevan, Esquire.

32. Plaintiff Rosanne Chernick (“Chernick”) is an individual and a citizen of 

the State of North Carolina, residing at 1446 Clifton Pond Road, Louisburg, North 

Carolina 27549. At all times relevant herein she was married to Steven Chernick, who 

died on February 24, 2002. Plaintiff Chernick is the Executrix of Mr. Chernick’s Estate. 

Plaintiff Chernick brings this suit in her individual capacity, as personal representative of 

the Estate of Steven Chernick, deceased, on behalf of said Estate, and as a Class

representative of a Class of others similarly situated as defined below. 

33. Plaintiff Chernick’s decedent, Steven Chernick, worked with and/or in the 

vicinity of asbestos containing products and equipment with asbestos containing 

components while performing auto body repair work and brake lining repairs. He worked 

at locations including, but not limited to, Tom’s Thumb Collision in the Bronx, New 

York during the early to mid 1980s and at other locations in the States of New York and 

Florida after such time. During that time Plaintiff’s decedent was exposed through his

employment to asbestos containing talc products mined, manufactured, processed, sold 

and/or distributed by Engelhard. That exposure proximately caused Mr. Chernick to 

develop asbestos injuries, including lung cancer, which injuries proximately led to and 

caused his death on February 24, 2002 at the age of 41. Prior to his death, Plaintiff 

Chernick’s decedent suffered and endured great pain and suffering and great mental 

anguish and emotional distress. Plaintiff Chernick’s decedent while alive, and his Estate

following his death, incurred substantial costs and expenses in obtaining medical 

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treatment and care of Mr. Chernicks’s asbestos injuries and lung cancer. The Estate of 

Steven Chernick sustained loss of income, earning capacity, funeral expenses and 

pecuniary losses. Plaintiff Chernick also suffered a loss of consortium, services and 

society of her husband. All of these injuries, losses and damages were compensable 

asbestos injury claims.

34. On or about August 30, 2001, Plaintiff Chernick and her husband 

commenced an asbestos injury lawsuit in the Supreme Court of New York, County of 

New York, N.Y. and by amendment to the complaint in that suit filed on or about 

October 29, 2001 joined Engelhard Minerals & Chemical Corporation, a predecessor to 

BASF, as a defendant; said suit was captioned Steven Chernick, et al. v. ABB Lummus 

Global, Inc., et al., Case No. 01-116741. Reasonably relying and acting upon the false 

statements of the defendants (as more particularly described herein) that Engelhard’s talc 

and talc products did not contain asbestos and/or upon the material omissions of 

Defendants regarding evidence that they possessed, or destroyed, that demonstrated the 

presence of asbestos fiber in Engelhard’s talc and talc products made to Plaintiff 

Chernick’s and her husband’s attorneys and representative, Early, Lucarelli, Sweeney & 

Strauss, as set forth more particularly herein, Plaintiff Chernick and her husband’s estate

authorized her attorney to voluntarily execute and provide a consent "No Opposition 

Summary Judgment Motion Order," to BASF’s counsel for filing, by which he, on behalf 

of his client, agreed to the presiding court granting a summary judgment dismissal of the 

Chernick case's claims as to the Engelhard Defendants. Plaintiff Chernick did not know 

that she and her husband’s estate had been the victims of Defendants’ Fraudulent 

Asbestos Defense Scheme described herein and she did not learn of such fact until 2011, 

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when she was informed of same by her attorney, Early, Lucarelli, Sweeney & Strauss, 

after it had learned of the fraudulent scheme in connection with the investigation of this 

matter. Had Plaintiff’s counsel and Plaintiff known about the existence of the spoliation 

described more particularly herein and the existence of evidence that BASF’s talc and 

talc products contained asbestos, the consent order for summary judgment would not 

have been entered as to BASF (Engelhard at the time), and in view of the circumstances 

Plaintiff would have issued a substantial settlement demand or would have taken her case 

to trial.

B. Defendants

(1) The BASF Defendants

35. Defendant, BASF Catalysts LLC is a limited liability company formed 

and existing under the laws of the State of Delaware, with its headquarters, principal 

place of business and managerial control located in the State of New Jersey, at 25 

Middlesex/Essex Turnpike, Iselin, New Jersey 08830. 

36. BASF Catalysts LLC is the successor in interest by merger and is 

responsible and liable for the debts and liabilities of the following companies: Engelhard 

Corporation, Engelhard Industries, Engelhard Minerals & Chemicals Corporation, 

Minerals & Chemicals Phillip Corporation, Eastern Magnesia Talc Company, Porocel 

Corporation and Pita Realty Limited (collectively “Engelhard”). Unless context 

indicates otherwise, “BASF” refers to and includes BASF Catalysts LLC and the 

Engelhard predecessor companies collectively. 

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37. At all times material herein, BASF and its predecessor companies, 

including in particular Engelhard, regularly and continuously transacted business in the 

State of New Jersey. 

38. BASF and its predecessors, including Engelhard, directed and/or 

committed the statutorily unlawful and other tortious activities and omissions alleged and 

complained about herein in the State of New Jersey, even though the impact and harm to 

Plaintiffs and many of the Class Member victims may have occurred outside of New 

Jersey. 

39. At all times material herein, Defendant BASF and its predecessors, 

including Engelhard, acted by and through its officers, employees, servants, attorneys, 

agents, actual, apparent and/or ostensible, any and all of whom were then and there acting 

within the course and scope of their authority, duties and employment, actual or apparent. 

40. Defendant BASF, acting as aforesaid, jointly conceived, orchestrated, 

agreed to participate in, and participated in the Fraudulent Asbestos Defense Scheme 

alleged herein; became a co-conspirator with others participating in the Fraudulent 

Asbestos Defense Scheme to defraud Plaintiffs and members of the Class, including the 

“Lawyer Perpetrators” identified herein; was a member of the BCAD Enterprise and 

participated in its creation, direction and management, and participated in the execution 

and commission of the BCAD Enterprise’s unlawful activities.

41. Defendant Thomas D. Halket (“Halket”) was, at times material herein, an 

attorney at law employed by BASF as an in-house counsel. Defendant Halket during his 

employment with BASF as an in-house attorney responsible for the handling of asbestos 

claim matters against the company, jointly participated in the creation and operation of 

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the Fraudulent Asbestos Defense Scheme alleged herein; became a co-conspirator with 

others participating in the Fraudulent Asbestos Defense Scheme to defraud Plaintiffs and 

members of the Class, including the “Lawyer Perpetrators” identified herein; was a 

member of the BCAD Enterprise and participated in its creation, direction and 

management, and participated in the execution and commission of the BCAD 

Enterprise’s unlawful activities, including the spoliation of evidence, either directly or 

indirectly as a co-conspirator. Halket never expressly or affirmatively advised his coconspirators or anyone outside of the conspiracy, such as the affected courts, claimants’

counsel or claimants, that he withdrew from the conspiracy, and consequently is liable for 

the acts of his co-conspirators following his termination of employment with BASF. 

Additionally, despite putting into force a fraudulent evidence concealment scheme 

intended and designed to impair, hamper and/or eliminate asbestos claims against 

Engelhard (now BASF), at no time has Halket done anything to arrest, cure or mitigate 

the harm to Plaintiffs and the Class that his wrongful acts and omissions have caused and 

will continue to proximately cause in the future. Due to the covert, clandestine and 

secretive nature of the Fraudulent Asbestos Defense Scheme, and the activities 

surrounding and relating to it – including the fact that BASF’s in-house and outside 

counsel attorneys were intimately involved in and responsible for conceiving and 

implementing the scheme–the dates and full nature and extent of his participation and 

specific roles and acts beyond that already alleged herein are presently unknown to 

Plaintiffs, but on information and belief, are known to him as well as BASF, Cahill 

Gordon and other named parties (including fictitiously named parties), and through 

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discovery conducted under the auspices of this Court can be developed in advance of 

trial.

42. Defendant Glenn Hemstock (“Hemstock”) was, at times material herein, 

employed by BASF (then Engelhard) as its Vice President of Research and Development. 

During his employment with BASF he was a top scientist. He worked there with and 

tested Engelhard’s talc and he managed and directed Engelhard employees and 

consultants who tested or conducted research on Engelhard’s talc. Defendant Hemstock 

during his employment with BASF jointly participated in the creation and operation of 

the Fraudulent Asbestos Defense Scheme alleged herein; became a co-conspirator with 

others participating in the Fraudulent Asbestos Defense Scheme to defraud Plaintiffs and 

members of the Class, including the “Lawyer Perpetrators” identified herein; was a 

member of the BCAD Enterprise and participated in its creation, direction and 

management, and participated in the execution and commission of the BCAD 

Enterprise’s unlawful activities either directly or indirectly as a co-conspirator. Hemstock 

never expressly or affirmatively advised his co-conspirators or anyone outside of the 

conspiracy, such as the affected courts, claimants’ counsel or claimants, that he withdrew 

from the conspiracy, and consequently is liable for the acts of his co-conspirators 

following his termination of employment with BASF. Additionally, despite putting into 

force a fraudulent evidence concealment scheme intended and designed to impair, 

hamper and/or eliminate asbestos claims against Engelhard (now BASF), at no time has 

he done anything to arrest, cure or mitigate the harm to Plaintiffs and the Class that his 

wrongful acts and omissions have caused and will continue to proximately cause in the 

future. 

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43. ‘Defendant Arthur A. Dornbusch II (“Dornbusch”) was, at all times 

material herein, an attorney at law employed by BASF as an in-house counsel. He also 

was at all times relevant herein a Vice President of BASF, BASF’s General Counsel and 

BASF’s Corporate Secretary. Defendant Dornbusch during his employment and tenure 

with BASF as General Counsel jointly participated in the creation and operation of the 

Fraudulent Asbestos Defense Scheme alleged herein; became a co-conspirator with 

others participating in the Fraudulent Asbestos Defense Scheme to defraud Plaintiffs and 

members of the Class, including the “Lawyer Perpetrators” identified herein; was a 

member of the BCAD Enterprise and participated in its creation, direction and 

management, and participated in the execution and commission of the BCAD 

Enterprise’s unlawful activities either directly or indirectly as a co-conspirator.

Dornbusch never expressly or affirmatively advised his co-conspirators or anyone outside 

of the conspiracy, such as the affected courts, claimants’ counsel or claimants, that he 

withdrew from the conspiracy, and consequently is liable for the acts of his coconspirators following his termination of employment with BASF. Additionally, despite 

putting into force a fraudulent evidence concealment scheme intended and designed to 

impair, hamper and/or eliminate asbestos claims against Engelhard (now BASF), at no 

time has Dornbusch done anything to arrest, cure or mitigate the harm to Plaintiffs and 

the Class that his wrongful acts and omissions have caused and will continue to 

proximately cause in the future. Due to the covert, clandestine and secretive nature of the 

Fraudulent Asbestos Defense Scheme, and the activities surrounding and relating to it –

including the fact that BASF’s in-house and outside counsel attorneys were intimately 

involved in and responsible for conceiving and implementing the scheme–the dates and 

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full nature and extent of his participation and specific roles and acts beyond that already 

alleged herein are presently unknown to Plaintiffs, but on information and belief, are 

known to him as well as BASF, Cahill Gordon and other named parties (including 

fictitiously named parties), and through discovery conducted under the auspices of this 

Court can be developed in advance of trial.

44. With respect to the activities, conduct, misstatements and omissions set 

forth herein, Defendants BASF, Halket, Dornbusch and Hemstock (collectively referred 

to as the “BASF Perpetrators”) acted recklessly, knowingly, deliberately and/or 

intentionally to mislead and deceive courts in which asbestos claims were pending, the 

Plaintiffs, the Asbestos Claimant Class and Asbestos Claimants’ counsel, or, in the 

alternative, to cause, assist, aid or abet others to mislead and deceive Plaintiffs and the 

Asbestos Claimant Class and Asbestos Claimants’ counsel. 

45. The BASF Perpetrators, including attorney defendants Dornbusch and 

Halket during their representation of BASF, and, as well, in carrying out the Fraudulent 

Asbestos Defense Scheme, acted in bad-faith, with ill will, and with intent to harm, 

deceive and defraud the Plaintiffs, the Asbestos Claimant Class and Asbestos Claimants’ 

Counsel and, as described more fully below, courts in which asbestos matters were 

pending, including but not limited to the Asbestos Multi-District Litigation court.

(2) The Cahill Gordon & Reindel Defendants

46. Defendant Cahill Gordon & Reindel LLP (“Cahill LLP” when referred to 

separately for context) is a limited liability partnership organized and existing under the 

laws of the State of New York. It came into existence on or as of April 29, 2003. It is 

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the successor in interest to the law firm partnership known as “Cahill Gordon & Reindel” 

and is responsible for this predecessor partnership’s debts and liabilities. 

47. Defendant Cahill LLP regularly and continuously did and does transact 

business in the State of New Jersey, as did its predecessor, Cahill Gordon & Reindel. At 

all times material to this matter, Cahill LLP also committed unlawful and other tortious 

conduct in, and directed towards, New Jersey and citizens of New Jersey.

48. Defendant Cahill Gordon & Reindel (“Cahill Partnership” when referred 

to separately for context) is and was at all times material a New York professional 

partnership. . 

49. Defendant Cahill Partnership regularly and continuously transacted 

business in the State of New Jersey and at all times material to this matter committed 

unlawful and other tortious conduct in, and directed towards, New Jersey and citizens of 

New Jersey. 

50. From 1919 until April 29, 2003, Cahill Partnership operated as a 

partnership. For the period of time Cahill Partnership was operating as a partnership, 

Cahill Partnership and its partners were, are and remain liable for any wrongful or 

fraudulent act or omission of any partner of the firm, including but not limited to Howard 

(Peter) Sloane, acting in the ordinary course of the business of the partnership or with the 

authority of his co-partners, that causes loss or injury to any person, including but not 

limited to Plaintiffs and Class Members who were not partners in the partnership.

51. Cahill Partnership further at all times material herein acted by and 

through its, partners other than Sloane, as well as by and through associate attorneys,

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officers, employees, servants, and/or, agents, actual, apparent and/or ostensible, any and 

all of whom were then and there acting within the course and scope of their authority, 

duties and employment, actual, apparent or ostensible, and/or within the authority of the 

copartners or members of the partnership. All Cahill Partnership partners, members,

associate attorneys, officers, employees, servants were at all times relevant herein acting 

in the ordinary course of business of the partnership and/or with the authority of his or 

her co-partners, members. 

52. Cahill Partnership and its partners are jointly and severally liable to 

Plaintiffs and the Class herein under the doctrine of respondeat superior for the actions of 

the partnership’s partners, associate attorneys, officers, employees, servants, and/or, 

agents, actual, apparent and/or ostensible. 

53. From and after April 29, 2003, Cahill LLP was operating as a registered 

limited liability partnership.

54. When and Cahill LLP was operating as a registered limited liability 

partnership, Cahill LLP is and was liable for any wrongful or fraudulent act or omission 

of any partner, including but not limited to Sloane, acting in the ordinary course of the 

business of the partnership or with the authority of his co-partners, that causes loss or 

injury to any person, including but not limited to Plaintiffs and the Class Members who 

were not partners in the partnership. 

55. When Cahill LLP was operating as a registered limited liability 

partnership, Cahill LLP partner Sloane directly supervised and controlled Cahill LLP 

attorneys and paralegals working on Engelhard’s and later BASF’s asbestos claim 

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defense, including but not limited to defendants Ira J. Dembrow and Scott A. Martin, and 

others, including fictitiously named defendants.

56. Cahill LLP partner/member Sloane is personally and fully liable and 

accountable for any negligent, wrongful or fraudulent act or misconduct committed by 

him and/or by any person under his direct supervision and control while rendering 

professional services on behalf of Cahill LLP, including but not limited to Cahill LLP 

associates Ira J. Dembrow and others, including fictitiously named defendants.

57. Cahill LLP partner/member Sloane is personally and fully liable and 

accountable for any negligent, wrongful or fraudulent act or misconduct committed by 

him and/or by any person under his direct supervision and control while rendering 

professional services in his capacity as a partner of Cahill LLP, including but not limited 

to Cahill LLP associates Ira J. Dembrow and Scott A. Martin, and others, including 

fictitiously named defendants.

58. Further, at all times material herein, Defendants Cahill LLP and Cahill 

Partnership (hereinafter collectively referred to as “Cahill Gordon” or “Defendant

Cahill Gordon”) acted by and through their members, partners, shareholders, officers, 

employees, servants, associate attorneys, or agents, actual, apparent and/or ostensible, 

any and all of whom were then and there acting within the course and scope of their 

authority, duties and employment, actual, apparent or ostensible, and/or within the 

authority of his or her copartners or members of the partnership. All Cahill Gordon 

partners, members or shareholders were acting in the ordinary course of business of the 

partnership and/or with the authority of his or her co-partners, members. Cahill Gordon 

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is liable herein under the doctrine of respondeat superior for the actions of its partners, 

members, shareholders, officers, agents, employees, servants and associate attorneys. 

59. From at least 1983 and continuing to in or about 2010, Cahill Gordon was 

BASF and its predecessors’ national counsel regarding asbestos injury claim defense 

matters. Based upon information and belief, Cahill Gordon was terminated by BASF as 

its national asbestos defense counsel after the spoliation and Fraudulent Asbestos 

Defense Scheme alleged herein was uncovered during discovery proceedings in the 

Paduano suit.

60. Defendant Cahill Gordon, through its members, shareholders or partners, 

officers, agents, employees, servants and associate attorneys, acting as aforesaid, was a 

member of the BCAD Enterprise and participated in its creation, direction and 

management, and participated in the execution and commission of the BCAD 

Enterprise’s unlawful activities. 

61. Defendant Cahill Gordon, through its members, shareholders or partners, 

officers, agents, employees, servants and associate attorneys, acting as aforesaid, jointly 

conceived, orchestrated, agreed to participate in, or participated in, and/or or recklessly 

permitted its members, shareholders or partners, officers, agents, employees, servants and 

associate attorneys, acting as aforesaid, to orchestrate, agree to participate in and actively 

participate in, the Fraudulent Asbestos Defense Scheme alleged herein, or was a coconspirator with, or an aider and abettor of others participating in the Fraudulent 

Asbestos Defense Scheme, including the BASF Perpetrators. Cahill Gordon never 

expressly or affirmatively advised its co-conspirators or anyone outside of the conspiracy, 

such as the affected courts, claimants’ counsel or claimants, that it withdrew from the 

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conspiracy, and consequently is liable for the harmful acts of its co-conspirators 

following its termination as BASF’s National Counsel.

62. Defendant Howard G. Sloane (a/k/a “Peter Sloane”) (“Sloane”) was, at 

times material hereto a member of the bar of New York State, an associate and later a 

partner in the Cahill Partnership and then a member or shareholder of Cahill LLP. 

Plaintiffs believe Sloane is a citizen of a state or territory different than they are. Sloane

at all material times herein was one of the principal Cahill Gordon attorneys assigned to,

responsible for and entrusted with the representation of BASF in asbestos claim matters. 

Defendant Sloane jointly conceived, orchestrated and participated in the fraudulent 

conduct scheme alleged herein with others including the BASF Perpetrators; became a 

co-conspirator with others participating in the scheme to defraud Plaintiffs and members 

of the Class; was a member of the BCAD Enterprise and participated in its creation, 

direction and management; and participated in the execution and commission of the 

BCAD Enterprise’s unlawful activities. At all times material herein Sloane was acting in 

the ordinary course of business of Cahill Gordon and/or with the authority of his Cahill 

Gordon co-partners, co-members or co-shareholders. Sloane never expressly or 

affirmatively advised his co-conspirators or anyone outside of the conspiracy, such as the 

affected courts, claimants’ counsel or claimants, that he withdrew from the conspiracy, 

and consequently is liable for the acts of his co-conspirators. Additionally, despite putting 

into force a fraudulent evidence concealment scheme intended and designed to impair, 

hamper and/or eliminate asbestos claims against Engelhard (now BASF), at no time has 

Sloane done anything to arrest, cure or mitigate the harm to Plaintiffs and the Class that 

his wrongful acts and omissions have caused and will continue to proximately cause in 

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the future. Due to the covert, clandestine and secretive nature of the Fraudulent Asbestos 

Defense Scheme, and the activities surrounding and relating to it – including the fact that 

BASF’s in-house and outside counsel attorneys were intimately involved in and 

responsible for conceiving and implementing the scheme–the dates and full nature and 

extent of his participation and specific roles and acts beyond that already alleged herein 

are presently unknown to Plaintiffs, but on information and belief, are known to him as 

well as BASF, Cahill Gordon and other named parties (including fictitiously 

named parties), and through discovery conducted under the auspices of this Court can be 

developed in advance of trial.

63. Defendant Scott A. Martin (“Martin”) was, at times relevant hereto, a 

member of the bar of the State of New York and an attorney employed by and practicing 

with Cahill Gordon. Plaintiffs believe Martin is a citizen of a state or territory different 

than they are. Martin at times material herein was one of the Cahill Gordon attorneys 

assigned to, entrusted with and responsible for the representation of BASF in asbestos 

claim matters. Martin, while supervised by Sloane as well as other Cahill partners, 

jointly conceived, orchestrated and/or participated in the fraudulent conduct scheme 

alleged herein with others including the BASF Perpetrators; was a co-conspirator with 

others participating in the scheme to defraud Plaintiffs and members of the Class; was a 

member of the BCAD Enterprise and participated in its creation, direction and/or

management; and participated in the execution and commission of the BCAD 

Enterprise’s unlawful activities. At all times material herein Martin was acting in the 

ordinary course of business of Cahill Gordon and/or with the authority of Cahill Gordon 

co-partners, co-members or co-shareholders. Martin never expressly or affirmatively 

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advised his co-conspirators or anyone outside of the conspiracy, such as the affected 

courts, claimants’ counsel or claimants, that he withdrew from the conspiracy, and 

consequently is liable for the acts of his co-conspirators. Additionally, despite putting 

into force a fraudulent evidence concealment scheme intended and designed to impair, 

hamper and/or eliminate asbestos claims against Engelhard (now BASF), at no time has 

Martin done anything to arrest, cure or mitigate the harm to Plaintiffs and the Class that 

his wrongful acts and omissions have caused and will continue to proximately cause in 

the future. Due to the covert, clandestine and secretive nature of the Fraudulent Asbestos 

Defense Scheme, and the activities surrounding and relating to it – including the fact that 

BASF’s in-house and outside counsel attorneys were intimately involved in and 

responsible for conceiving and implementing the scheme–the dates and full nature and 

extent of his participation and specific roles and acts beyond that already alleged herein 

are presently unknown to Plaintiffs, but on information and belief, are known to him as 

well as BASF, Cahill Gordon and other named parties (including fictitiously 

named parties), and through discovery conducted under the auspices of this Court can be 

developed in advance of trial.

64. Defendant Ira J. Dembrow (“Dembrow”) was, at times relevant hereto, an 

attorney at the law firm of Cahill Gordon. Plaintiffs believe Dembrow is a citizen of a 

state or territory different than them. Dembrow at all times material herein was one of 

the Cahill Gordon attorneys assigned to, entrusted with and responsible for the 

representation of BASF in asbestos claim matters. Dembrow jointly with Sloane and 

other defendants conceived, orchestrated and/or participated in the fraudulent conduct 

scheme alleged herein with others including the BASF Perpetrators; was a co-conspirator 

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with others participating in the scheme to defraud Plaintiffs and members of the Class; 

was a member of the BCAD Enterprise and participated in its creation, direction and/or

management; and participated in the execution and commission of the BCAD 

Enterprise’s unlawful activities. At times material herein Dembrow was acting in the 

ordinary course of business of Cahill Gordon and/or with the authority of his Cahill 

Gordon co-partners, co-members or so-shareholders. Dembrow never expressly or 

affirmatively advised his co-conspirators or anyone outside of the conspiracy, such as the 

affected courts, claimants’ counsel or claimants, that he withdrew from the conspiracy, 

and consequently is liable for the acts of his co-conspirators. Additionally, despite putting 

into force a fraudulent evidence concealment scheme intended and designed to impair, 

hamper and/or eliminate asbestos claims against Engelhard (now BASF), at no time has 

Dembrow done anything to arrest, cure or mitigate the harm to Plaintiffs and the Class 

that his wrongful acts and omissions have caused and will continue to proximately cause 

in the future. Due to the covert, clandestine and secretive nature of the Fraudulent 

Asbestos Defense Scheme, and the activities surrounding and relating to it – including the 

fact that BASF’s in-house and outside counsel attorneys were intimately involved in and 

responsible for conceiving and implementing the scheme–the dates and full nature and 

extent of his participation and specific roles and acts beyond that already alleged herein 

are presently unknown to Plaintiffs, but on information and belief, are known to him as 

well as BASF, Cahill Gordon and other named parties (including fictitiously 

named parties), and through discovery conducted under the auspices of this Court can be 

developed in advance of trial.

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65. With respect to the activities, conduct and omissions set forth herein, 

Defendants Cahill Gordon, Sloane, Martin and/or Dembrow (collectively referred to as 

the “Lawyer Perpetrators”) acted recklessly, knowingly, deliberately and/or 

intentionally to mislead and deceive courts in which asbestos claims were pending, 

Plaintiffs, the Asbestos Claimant Class and Asbestos Claimants’ counsel, or, in the 

alternative, to cause, assist, aid or abet others to mislead and deceive courts, Plaintiffs the 

Asbestos Claimant Class and Asbestos Claimants’ counsel.

66. The Lawyer Perpetrators, individually and jointly, during their respective 

representation of BASF, and in carrying out the Fraudulent Asbestos Defense Scheme as 

well, acted in bad-faith, with ill will, and with intent to harm, deceive and defraud the 

plaintiffs, class members and, as described more fully below, courts in which asbestos 

matters were pending, including but not limited to the Asbestos Multi-District Litigation 

court.

(3) The Fictitious Defendants

67. JOHN DOE BUSINESS ENTITIES 1 to 100 are fictitious corporations, 

partnerships, or other business entities or organizations that BASF is responsible or liable 

for and whose identities are not presently known, which entities may have mined, milled, 

manufactured, sold, supplied, purchased, marketed, installed and/or removed asbestos or 

asbestos-containing materials, or alternatively, are responsible for, are the alter egos of, 

or are otherwise responsible for the conduct or liability of such entities, as set forth 

herein.

68. JOHN DOE BUSINESS ENTITIES 101 to 200 are the fictitious firms, 

corporations, partnerships, limited liability companies/associations or other business 

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entities or organizations whose identities are not presently known, and who may have 

perpetrated, or are responsible for, are the alter egos of or are otherwise responsible for 

the conduct or liability of those who perpetrated or acted in concert with, in furtherance 

of, or in conjunction with the other Defendants in the conduct, activities, acts and 

omissions as set forth herein.

69. JOHN DOE LAWYERS 1 to 500 are the fictitious names of lawyers and 

law firms, legal professional corporations, legal professional partnerships, or other 

professional business entities or organizations, or their agents, employees, or servants, 

acting within the course and scope of their employment, or other individuals whose 

identities are not presently known, and who may have perpetrated and/or are responsible 

for, or are the alter egos of, or are otherwise responsible for the conduct or liability of 

those who perpetrated, aided and abetted, or acted in concert with, in furtherance of, or in 

conjunction with the other Defendants in the conduct, activities, acts and omissions as set 

forth herein. 

70. Defendants JOHN DOE 1 to 500 are the fictitious names of individuals 

whose identities are not presently known, who may have perpetrated, aided and abetted, 

conspired with, acted in concert with and/or are secondarily responsible or liable under 

law for the conduct or activities of those who may have acted in concert with, in 

furtherance of, or in conjunction with the other Defendants in the conduct, activities, acts 

and omissions set forth herein, including but not limited to employees, officers, agents, 

members and partners of named Defendants as set forth herein.

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IV. VENUE AND JURISDICTION.

71. This Court has subject-matter jurisdiction over the individual claims of the 

named representative Plaintiffs under 28 U.S.C. § 1332, as there is complete diversity of 

citizenship between the plaintiffs and defendants named herein and the amount in 

controversy as to each plaintiff’s exceeds the sum or value of $75,000, exclusive of 

interest and costs. This Court additionally has subject-matter jurisdiction over nationwide 

class action claims asserted by Plaintiffs pursuant to 28 U.S.C. § 1332, as amended by the 

Class Action Fairness Act of 2005, because the matter in controversy exceeds 

$5,000,000, exclusive of interest and costs, and is a class action in which some members 

of the class are citizens of states different than the Defendants. 28 U.S.C.§1332(d)(2)(A).

72. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(1) and 

1391(b)(2) because numerous Defendants, as described above, reside in, are 

headquartered in, and/or conduct business in, this judicial district, and because a 

substantial part of the acts or omissions giving rise to the claims set forth herein occurred 

in this judicial district, or were directed and controlled from within this judicial district.

V. FACTS COMMON TO CLASS CERTIFICATION AND ALL COUNTS

A. Asbestos Background Information 

73. Asbestos is a naturally occurring mineral and is a human carcinogen.

74. A common form of asbestos fiber is chrysotile asbestos. Chrysotile 

asbestos is a recognized and regulated human carcinogen. Chrysotile is the most 

common variety of asbestos found in products in the United States. 

75. Other forms of asbestos are amosite, crocidolite, tremolite, actinolite and 

anthophyllite. The United States Environmental Protection Agency, the Occupational 

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Health and Safety Administration, and the World Health Organization, among others, 

have stated that there is no known safe level of exposure to asbestos of any type. 

76. Talc is a naturally occurring mineral that is mined and then processed or 

used in manufacturing by companies in numerous parts of the United States. 

77. Asbestos has been identified as a contaminant of some talc mines. 

B. Engelhard’s Emtal Talc Products and Asbestos

78. BASF’s predecessor Engelhard either directly or indirectly through a 

subsidiary owned or operated a talc mine located in Johnson, Vermont (the “Johnson 

Mine”) from 1967 until 1983.

79. The Johnson Mine was closed in 1983. 

80. At some time presently unknown to Plaintiffs, and according to 

information provided by Defendants in preceding asbestos litigation, the Johnson Mine 

became flooded with water, thereby preventing the obtaining of any future valid samples 

of its talc.

81. BASF’s predecessor Engelhard processed or manufactured the Johnson 

Mine’s talc ore into talc products that were marketed under the trade name “Emtal talc”.

The “Emtal” trademark was owned and utilized by BASF’s subsidiary, Eastern 

Magnesia. Emtal talc products also included “G&S Talc,” talc that contained serpentine 

asbestos fiber. 

82. Emtal talc ore and products were used across the nation in diverse 

industries for many purposes. As examples, it was an ingredient, component of, or 

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coating in or on the following products: wall board, joint compound, auto body “filler,” 

dusting agents and children’s balloons.

83. Emtal talc and talc products produced, processed and/or manufactured by 

BASF, contained chrysotile asbestos fibers, as well as other asbestos forms including 

tremolite and serpentine asbestos. 

84. During the 1970s and continuing through the early 1980s, BASF through 

its internal personnel, outside consultants and internal laboratories conducted tests and 

assays on its talc ore and products, as well as in, about or on areas or environments 

where the talc was mined, processed, or used. Other third parties also conducted tests 

and assays on BASF talc ore and products. A number of the tests and assays were to 

determine if the Johnson Mine’s talc and processed Emtal talc products contained 

asbestos fibers.

85. BASF had knowledge of testing and assays performed on talc obtained 

from the Johnson Mine and Emtal talc products, and had knowledge of the tests’ results, 

including test findings that the talc and talc products contained asbestos fibers and that 

certain environments in its facilities, including laboratories, had high levels of airborne 

asbestos fibers.

86. The tests and assay results are scientific and business records that BASF 

and predecessors regularly kept and maintained.

87. The test and assay results conducted on Johnson Mine talc ore and 

processed Emtal talc products found asbestos fibers in the ore and products.

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88. Among the tests and assays of Emtal talc which found the presence of 

asbestos fibers in the Emtal talc which were uncovered in the Paduano suit discovery are:

a. A 1972 Royal Globe Insurance test with results indicating four out of five 

Emtal talc samples contained asbestos fibers.

b. A May 1972 Johns Manville test which identified asbestos fibers, 

including tremolite fibers, in all of the Emtal talc samples. 

c. A 1977 test by Mr. Triglia, an Engelhard employee, which identified the 

presence of asbestos in Emtal talc. 

d. A 1978 test which established the presence of asbestos in all Emtal talc 

sampled. 

e. A 1979 Georgia Tech electron microscope analysis test which found fibers 

in the Emtal talc.

f. Three other 1979 tests which all confirmed the presence of asbestos in 

Emtal talc.

89. The above identified tests and assays, on information and belief, are not an 

exhaustive list of the asbestos tests and assays with positive findings for asbestos in 

Emtal talc. Plaintiffs believe there are or were other tests and assays of Emtal talc and/or 

talc from the Johnson Mine that had positive findings of asbestos, which BASF claims 

are privileged and refuses to divulge or, as will be described below, were reported in 

documents collected by BASF in or about 1984 and then either destroyed or secreted 

away once the BASF management or in-house counsel, including Hemstock, Dornbush 

and Halket, and Cahill Gordon counsel, including Sloane, became aware of the 

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implications of such positive test and assay findings on BASF’s liability exposure and

national risk management program regarding asbestos injury claims. 

90. BASF’s management and in-house counsel, including Hemstock, 

Dornbush and Halket, and Cahill Gordon counsel, including Sloane, based upon 

information and belief, had knowledge and were aware of the test results and other nonpublicly available data, opinions, findings and conclusions of experts which established 

that the Johnson Mine talc and/or Emtal talc products contained asbestos.

91. Despite the findings from these tests and assays to the contrary, BASF 

represented to its customers, industry trade groups and the Federal Government that the 

Emtal talc was asbestos free and even marketed the product as a viable asbestos 

substitute, thereby causing widespread and unknowing exposure to asbestos to United 

States citizens nationwide, including workers and workers’ spouses and children..

C. The Westfall Asbestos Lawsuit’s Discovery

92. In 1979, Mr. David Howard Westfall, a family member of a deceased 

rubber and rubberized product industry worker, filed an asbestos injury lawsuit in the 

United States District Court for the District of Rhode Island captioned Westfall v. 

Whittaker, C.A. No. 79-0269 (the “Westfall case”), based upon his decedent’s exposure 

to asbestos containing talc products.

93. In the Westfall case, plaintiff identified one of the Engelhard companies, 

Eastern Magnesia Talc Company, as a company that manufactured the talc his decedent 

was exposed to and which caused the mesothelioma injury underlying the case. 

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94. BASF was represented and defended in the Westfall case by, among 

others, Cahill Gordon, its national counsel.

95. The BASF Perpetrators were aware of the Westfall case and participated in 

and/or oversaw BASF’s defense of the case along with Cahill Gordon.

96. The BASF Perpetrators and the Lawyer Perpetrators were aware of, 

participated in and/or oversaw the investigation in the defense of the Westfall case on 

behalf of BASF and in such capacity were aware of internal and external investigations, 

tests and assays relating to the Johnson Mine talc ore and Emtal talc products. 

97. In particular, Defendant Sloane was among the Cahill Gordon attorneys 

actively representing BASF in the Westfall case, and in such capacity was aware of the 

discovery and evidence relating to BASF that existed in that suit.

98. In particular, Defendant Halket was among BASF’s in-house attorneys 

actively involved and participating in the Westfall case defense, and in such capacity was 

aware of the discovery and evidence relating to BASF that existed in that suit. 

99. In response to document discovery requests served on BASF by the 

Westfall case’s attorneys, documents that established the existence of asbestos fibers in 

Emtal talc, including test and assay results that were in BASF’s possession, were 

produced in or about 1983 to Westfall’s attorneys by BASF through its counsel, Cahill 

Gordon. 

100. In 1983, as part of the Westfall case discovery, Defendant Hemstock was 

deposed under oath over two days in his capacity as an employee of Engelhard. 

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Appended as Exhibit 1 is a copy of his deposition transcripts produced to the plaintiff’s 

counsel in the Paduano suit only after Mr. Swenson’s deposition testimony therein 

revealed the existence of the spoliation and fraudulent concealment scheme that is the 

subject of this suit. The exhibits identified in Defendant Hemstock’s depositions were 

not produced by BASF in the Paduano suit discovery despite request. Accordingly, a full 

and complete copy of the entire Hemstock transcript including all exhibits cannot be 

appended. 

101. At the time of his deposition in the Westfall case, Defendant Hemstock 

was one of Engelhard’s top scientists and held a management (Vice-President of 

Research and Development) position with Engelhard. 

102. Defendant Sloane was also present at and represented Defendant 

Hemstock and BASF at Hemstock’s deposition in the Westfall case.

103. Defendant Halket was also present at Dr. Hemstock’s Westfall case 

deposition in his capacity as BASF in-house counsel. 

104. During his deposition in the Westfall case, Defendant Hemstock testified 

that the Emtal talc did in fact contain asbestos fibers. He was thus aware of the issue over 

Emtal Talc’s asbestos content in asbestos claims and was aware that evidence relating to 

same was pertinent to asbestos claims against BASF. 

105. During his deposition in the Westfall case, Defendant Hemstock was 

questioned by Mr. Westfall’s lawyer about assays and tests on Emtal talc that had been 

conducted at the Engelhard’s laboratory in New Jersey. 

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106. During his deposition in the Westfall case, Defendant Hemstock admitted 

that various tests performed throughout the 1970s and 1980s, both by BASF employees 

and by third parties, indicated the presence of asbestos fibers in Emtal talc that was tested 

or assayed. 

107. During his deposition in the Westfall case, Defendant Hemstock was 

shown and then questioned about various documents, including what were apparently test 

or assay results. These documents were produced to Mr. Westfall’s attorney by BASF, 

through its attorneys Cahill Gordon, during discovery in the Westfall case and were 

marked as exhibits during the course of Defendant Hemstock’s deposition. 

108. During his deposition in the Westfall case, Defendant Hemstock was 

shown the results of various tests and assays which characterized the level of asbestos 

fibers in the Emtal talc as having “high levels of chrysotile.” 

109. Defendants Sloane, other Cahill Gordon attorneys present at Hemstock’s 

deposition, and Defendant Halket all heard Hemstock’s testimony under oath and all 

were able to examine and review the exhibits that Defendant Hemstock was shown and 

testified to or about during Defendant Hemstock’s deposition, if not beforehand as well.

110. Defendants Sloane and the other Cahill Gordon attorneys present at 

Hemstock’s deposition were aware of and appreciated the negative implications on 

BASF’s asbestos injury claim liability and BASF’s exposure to future asbestos claims

created by Hemstock’s testimony and the test and assay results showing the presence of 

asbestos fiber in BASF products identified during his deposition in the Westfall case.

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111. Defendant Halket, Dornbusch and other BASF Perpetrators were aware of 

and appreciated the negative implications on BASF’s asbestos injury claim liability and 

BASF’s exposure to future asbestos claims created by Hemstock’s testimony and the test 

and assay results showing the presence of asbestos fiber in BASF products identified

during his deposition in the Westfall case.

112. Following Defendant Hemstock’s deposition, BASF and/or Cahill 

Gordon obtained a full and complete copy of Hemstock’s deposition transcripts as well as 

a copy of the documents upon which he was examined that were identified in the 

transcript. 

113. On or about March 29, 1983, Defendant Sloane in the Westfall case took 

the deposition of a former Engelhard research and development employee, Peter Gale 

(“Gale”). 

114. Gale, during his employment with Engelhard in the 1970’s, had conducted 

analytical testing research on Emtal talc. He also during that time visited and took 

samples of talc ore from the Johnson Mine. 

115. During his deposition, Gale testified in response to Sloane’s questioning 

that he kept laboratory notebooks of his work and analysis which were considered 

confidential records of Engelhard and were stored in Engelhard’s library. In response to 

the Paduano suit’s spoliation investigation discovery, BASF stated that it was not able to 

produce Gale’s laboratory notebooks.

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116. After Gale was identified as a possible expert witness for the plaintiff in 

the Westfall case, BASF through Cahill Gordon objected to his serving as an expert for 

the Westfall plaintiff. Gale acquiesced to BASF’s demand that he not serve as an expert 

to the Westfall case’s plaintiff based on the terms of his employment contract with 

Engelhard and BASF’s objection to his voluntarily testifying. 

117. On or about April 7, 1983, a deposition under oath of another employee of 

Engelhard, Mr. Emil J. Triglia (“Triglia”), was taken in the Westfall case in Metuchen, 

New Jersey. A copy of Mr. Triglia’s deposition transcript as produced in the Paduano

suit is appended as Exhibit 2.

118. During his deposition in the Westfall case, Triglia testified that Emtal talc 

contained asbestos fibers.

119. During his deposition in the Westfall case, Mr. Triglia was shown various 

documents relating to Emtal talc which were subsequently identified and marked as 

exhibits during the deposition. In response to requests for copies of the marked exhibits 

in the Paduano suit’s spoliation investigation discovery, BASF stated that it was not able 

to produce copies of the actual marked exhibits referred to in the deposition transcript.

BASF offered instead an attempted partial reconstruction of the deposition exhibits in 

which it produced copies of some (but not all) of documents purportedly matching the 

description of the documents referenced during the deposition. 

120. According to the Triglia deposition transcript produced in the Paduano

case, Defendant Halket and Cahill Gordon attorneys were identified as being present at 

the Triglia deposition.

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121. After Triglia’s deposition was transcribed, the BASF Perpetrators and 

and/or the Lawyer Perpetrators obtained a full and complete copy of Triglia’s deposition 

transcripts, as well as a copy of the documents that were identified during the depositions 

and about which he was questioned during the deposition.

122. On or about or about May 6, 1983, Defendant Sloane wrote a letter to the 

court reporter who recorded and transcribed Triglia’s deposition and requested that the 

transcript record be corrected to reflect that Defendant Halket and Defendant Cahill

Gordon’s attorneys were not present at the deposition as indicated because, according to 

Defendant Sloane in his letter, they were not invited to attend the deposition. Defendant 

Sloane’s letter further transmitted to the court reporter for inclusion with the deposition 

transcripts errata sheets by Triglia purporting to correct his testimony or the transcript. 

123. Whether present at the disposition or not, Defendant Sloane did receive 

the transcript of the Triglia deposition and was aware of its contents as he reviewed it 

sufficiently to provide the court reporter with errata information. 

124. Copies of Triglia’s deposition were circulated or mailed to BASF’s inhouse attorneys, including Defendant Halket, and to the Lawyer Perpetrators.

125. The BASF Perpetrators and the Lawyer Perpetrators were aware and 

appreciated the negative implications on BASF’s asbestos injury claim liability and 

BASF’s exposure to future asbestos claims of both Triglia’s testimony and the test and 

assay results showing the presence of asbestos fiber in BASF products identified during 

Triglia’s deposition.

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126. At the time of the Westfall case, the BASF Perpetrators and the Lawyer 

Perpetrators knew that BASF could and would in the future be sued by other asbestos 

injury claimants who were exposed to BASF’s Emtal talc products. The existence of 

such potential claims created a substantial national asbestos risk management and 

liability problem for BASF. By this time, the early to mid-1980s, several major mining 

and manufacturing companies had already gone into bankruptcy because of liability for 

asbestos claims. 

D. The Westfall Case’s Settlement and Confidentiality Agreement and 

Origins of the BCAD Enterprise

127. BASF’s management had knowledge of the Westfall case’s discovery at or 

about the time it was occurring. Also, at or about that time BASF’s management and inhouse counsel, including Hemstock, Dornbusch and Halket, were aware of the negative 

implications that BASF’s production of positive test/assay results and internal documents 

establishing the fact Emtal talc products contained asbestos produced in the Westfall case 

had not only upon the Westfall case, but also upon BASF’s asbestos claim liability

exposure to future asbestos claims and BASF’s asbestos liability risk management in 

general. This created a significant liability and risk management problem for BASF given 

the widespread distribution and use of EMTAL talc products. 

128. Sometime following the depositions of Defendant Hemstock and Mr. 

Triglia in 1983 and prior to March 7, 1984, members of BASF’s management and inhouse general counsel’s office and Cahill Gordon, including but not limited to 

Defendants Dornbusch, Hemstock, Halket and Sloane, devised and agreed to a strategy, 

plan and scheme to control and even possibly eliminate BASF’s (then Engelhard’s) future 

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asbestos injury claim liability and asbestos risk management exposure. Under this plan 

and scheme: (a) the Westfall case would be resolved by a settlement that required a 

confidentiality agreement which prevented the BASF discovery responses, deposition 

transcripts, and other evidence of asbestos fiber present in BASF talc products gathered 

in the discovery of that case from becoming disclosed or otherwise known and available 

to other asbestos claimants and their counsel; (b) steps would then be taken under the 

false pretense or guise of record retention management to gather-up and then limit access 

or conceal or destroy all evidence and documents in Engelhard’s possession and control 

relating to Emtal talc ore and products, including the discovery in Westfall case; and, (c) 

all claimants and experts consulted from that time forward would be told by BASF and/or 

its attorneys that Emtal talc ore and products did not contain asbestos and/or that there 

was no evidence to the contrary and in support of these representations only samples, test 

results or documents consistent with these representations would be provided or referred 

to in connection with asbestos injury claims, thus corrupting, biasing and tainting the 

opinions of such experts. Thus began the Fraudulent Asbestos Defense Scheme and the 

collusion and conspiracy among BASF and Cahill Gordon to implement the scheme and 

conceal its existence and operation from all persons and institutions outside of BASF and 

Cahill Gordon. 

129. On information and belief, sometime following the depositions of 

Defendant Hemstock and Mr. Triglia in 1983 and prior to March 7, 1984, and all the 

while Emtal litigation was still pending and predicted to continue, and more asbestos 

litigation foreseen to come, members of BASF’s management and in-house General 

Counsel’s office, including but not limited to Defendants Dornbusch, Hemstock, and 

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Halket, obtained BASF’s (then Engelhard’s) management’s consent and authorization to 

implement and execute the Fraudulent Asbestos Defense Scheme . 

130. On information and belief, Defendant Sloane and other Cahill Gordon 

lawyers obtained Defendant Cahill Gordon’s management’s authorization or 

acquiescence to implement and execute the Fraudulent Asbestos Defense Scheme

131. To execute, manage and control the Fraudulent Asbestos Defense Scheme, 

which due to the nature of asbestos injury claims was foreseeably expected to continue on 

for decades, an association in fact arose in or about 1983 or 1984, the exact date being 

presently unknown to Plaintiffs, between BASF and Cahill Gordon. As mentioned, this 

association in fact is identified and referred to as the “BASF-Cahill Gordon Asbestos 

Defense Enterprise” or “BCAD Enterprise” for short. 

132. BASF, with the assistance and representation of Cahill Gordon, settled the 

Westfall case. 

133. The terms of the Westfall case settlement included a confidentiality 

agreement that bound the Westfall case’s plaintiff and his attorneys to not discuss the case 

or share or otherwise disclose the discovery and evidence obtained in the matter. Upon 

information and belief, after the case was settled the inculpating evidence produced or 

developed in the Westfall case was either destroyed or secreted away by the BASF 

Perpetrators, including, by Hemstock, Dornbuch and Halket.

134. The Westfall case settlement and confidentiality agreement were parts of 

the BASF Perpetrators and Lawyer Perpetrators’ plan, scheme and agreement to mislead, 

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deceive and defraud asbestos injury claimants and their attorneys, and in some 

circumstances the courts directly, regarding the viability and merit of asbestos injury 

claims against BASF based upon Emtal talc products. 

135. The Westfall case settlement and obtaining the confidentiality agreement 

that bound the Westfall case’s plaintiffs and counsel were overt acts in furtherance of the 

BASF Perpetrators and Lawyer Perpetrators’ agreement and conspiracy to (a) mislead, 

deceive and defraud asbestos injury claimants, asbestos claimant attorneys and presiding 

asbestos courts, including the federal District Court handling the asbestos Multi-District 

Litigation, regarding the viability or the merit of asbestos injury claims against BASF 

based upon Emtal talc products; and (b) deny and deprive asbestos plaintiffs of the 

evidence necessary to prosecute their claims and thereby their rights to trials by jury.

E. The Gathering and Spoliation of Inculpatory Evidence after the 

Settlement of the Westfall Case.

136. After the Westfall case was settled, and while other Emtal asbestos 

litigation was pending and/or additional asbestos suits were foreseeable and likely to 

come, a memorandum dated March 7, 1984, signed by Defendant Hemstock entitled 

“DOCUMENT RETRIEVAL – DISCONTINUED OPERATIONS” (“Document 

Retrieval Memorandum”) was sent to employees of Engelhard. A copy of the 

Document Retrieval Memorandum is appended as Exhibit 3 and incorporated herein by 

reference. 

137. The Document Retrieval Memorandum directed all Engelhard minerals 

division employees to search for, retrieve, and gather “all notebooks, duplicate copies of 

notebooks, technical service requests and responses, memoranda and reports” relating to 

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operations of Engelhard Minerals Ltd. and Emtal, among other BASF predecessor 

companies. 

138. BASF’s employees were directed by the Document Retrieval 

Memorandum and the BASF Perpetrators to place the documents they gathered in 

response to the memorandum in file boxes for discard, and to make the boxes available 

for pick-up on March 16, 1984.

139. All documentary evidence relating to Engelhard’s asbestos-containing 

talc, was immediately thereafter gathered up, collected by the BASF Perpetrators or their 

agents, and was either destroyed or secreted away by the BASF Perpetrators, all with the 

knowledge, approval and agreement of the Lawyer Perpetrators. 

140. The evidence gathered as a result of the Document Retrieval 

Memorandum is believed to include, among other things, Emtal talc sales and inventory 

records, laboratory notebooks, which would include data and test or assay results on 

Emtal talc products and talc ore from the Johnson Mine, samples, photo micrographs,

original depositions, deposition exhibits and test and assay result documents on tests or 

assays performed by third parties, such as Royal Globe Insurance, Johns Manville and 

Georgia Institute of Technology (“Georgia Tech”).

141. The collection of the documents in March, 1984 was not for legitimate 

record retention purposes and any claim that the gathering up of the documents on such 

basis is and was purely pretextual and performed in bad faith by BASF, Dornbusch, 

Hemstock and Halket. The collection of documents and other evidence relating to 

asbestos in Engelhard’s talc ore and talc products took place at a time and under 

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circumstances that both the BASF Perpetrators and the Lawyer Perpetrators knew, or 

anticipated and foresaw, that BASF was engaged in, threatened with or would be the 

subject of multiple asbestos injury claims in which it was, or it would be contended, that 

its talc ore and Emtal talc products contained asbestos fibers causing the claimant harm or 

putting it a financial responsibility for answering the claims of asbestos claimants. 

Because of this knowledge, BASF had a duty, of which the BASF Perpetrators and 

Lawyer Perpetrators were well aware, to preserve evidence and documents relevant to 

such asbestos claims that were in BASF’s possession, custody or control. The Lawyer 

Perpetrators as BASF’s national counsel in asbestos matters, including the Westfall case, 

had a duty to advise and assist BASF in fulfilling, and not in any way incite, aid, abet or 

assist BASF in violating that duty. 

142. BASF, the BASF Perpetrators and the Lawyer Perpetrators breached their 

respective duties regarding the preservation of evidence and documents by not preserving 

and/or by otherwise spoliating same and/or by gathering such evidence for purposes of 

denying access to that evidence to those who were then asserting, or could in the future 

assert claims against BASF for injuries caused by asbestos in its talc and talc products. 

143. Despite being asked in the Paduano suit for an inventory of the documents 

collected pursuant to the Document Retrieval Memorandum and for a clear, unequivocal 

statement as to the fate and, if applicable, current location of the Engelhard talc and 

asbestos documents, BASF has to date neither provided an inventory nor stated the fate 

or current whereabouts of all of the documents collected in 1984.

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144. The collection and destruction or secreting away of Engelhard’s 

documents in March 1984 were parts of the BASF Perpetrators and Lawyer Perpetrators’ 

plan, scheme, collusion and agreement to mislead, deceive and defraud asbestos 

claimants and their attorneys regarding the viability or merit of asbestos injury claims 

against BASF based upon Emtal talc products. 

145. The collection and destruction or secreting away of Engelhard’s 

documents in 1984, and thereafter as well, were overt acts in furtherance of the BASF 

Perpetrators and Lawyer Perpetrators’ agreement and conspiracy to (a) mislead, deceive 

and defraud asbestos claimants and asbestos claimant attorneys regarding the viability or 

merit of asbestos injury claims against BASF based upon Emtal talc products; and (b) 

fraudulently conceal and spoliate material evidence from the plaintiff's, including, but not 

limited to, evidence showing the existence of asbestos in Emtal talc such as was produced 

during the Westfall case’s discovery.

F. BCAD Enterprise’s Twenty-Five Years Long Pattern and Practice of 

Misleading and Deceiving Asbestos Injury Claimants, Asbestos 

Claimants’ Counsel and Asbestos Courts.

146. After the collection and subsequent destruction or secreting away of 

BASF’s asbestos documents and other evidence was completed in or about March 1984, 

the BASF Perpetrators and Lawyer Perpetrators acting directly or through their coconspirators, began executing the second related element of the fraudulent plan and 

scheme to end and ward off asbestos injury claims and lawsuits against BASF, namely: 

whenever an asbestos injury claim or lawsuit was filed or came to BASF’s attention, the 

asbestos injury claimant, their lawyer(s) and, when and where applicable, the court in

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which such claim was pending, were systematically and uniformly told (often in identical 

language authored by Cahill Gordon) that Emtal talc ore and products did not contain 

asbestos and/or there was not any evidence that it did. As a result of the execution of the 

Fraudulent Asbestos Defense Scheme, Defendants were able to obtain either the 

dismissal or termination of claims voluntarily or, if required, involuntarily by order or 

judgment, or, when circumstances warranted, pay a small token settlement amount in 

exchange for a full release of claims or equivalent agreement. 

147. To facilitate and enable the Fraudulent Asbestos Defense Scheme to 

successfully work over the many years it would necessarily continue, due to the 

widespread use of the Emtal talc products in the United States and the nature of asbestos 

disease injuries, including its long latency period, the BASF Perpetrators and Lawyer 

Perpetrators formed and utilized the BCAD Enterprise, an association in fact which they 

managed and controlled, to conduct not only BASF’s legitimate asbestos defense

activities, including among other things the retaining, indoctrination, instruction and 

direction of local defense law firms involved or assisting in implementing BASF’s 

asbestos defense, but as well the illegal and illegitimate Fraudulent Asbestos Defense 

Scheme. 

148. The BCAD Enterprise existed from 1983 or 1984, the exact date being 

presently unknown to Plaintiffs, to at least, 2009.

149. The BCAD Enterprise was organized to conduct and execute the 

Fraudulent Asbestos Defense Scheme. The parties organizing it, including Dornbusch, 

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Hemstock, Halket and Sloane, intended it would continue for the many years to come that 

asbestos claims would be filed, which in fact it did. 

150. The BASF Perpetrators and Lawyer Perpetrators, as well as others 

associated with the BCAD Enterprise, had specialized roles and functions in conducting 

and managing the operation of BCAD Enterprise and in executing the Fraudulent 

Asbestos Defense Scheme. 

151. Defendant BASF’s and the BASF Perpetrators’ particular roles, functions 

and activities in the BCAD Enterprise it, acting as aforesaid performed, included: 

a. Managing and handling asbestos injury claims against BASF in general, 

including performing the tasks, functions and duties as required or needed in 

overseeing the administration of the claims or lawsuits; 

b. Making insurance coverage claims; 

c. Retaining and compensating counsel; 

d. Answering discovery or other information requests and verifying the truth 

of those responses and supplying BASF personnel for discovery as required; 

e. Funding the BCAD Enterprise’s asbestos defense and claim resolution 

activities, including compensating national and local counsel;

f. Collecting and spoliating evidence that its talc and other products 

contained asbestos, as described above;

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g. Suborning or otherwise procuring false unsworn and sworn 

representations from its employees, officers consultants and experts as needed, 

including obtaining or assisting in obtaining incorrect, misleading, improperly biased

or false affidavits and discovery response verifications by BASF employees, BASF 

officers, and/or BASF consultants and experts which they knew were to be provided 

to asbestos claimants, asbestos claimants’ counsel and in some cases presiding 

asbestos courts and other tribunals with the intention that they would be relied upon;

h. Authorizing, permitting, and aiding and abetting the Lawyer Perpetrators 

and other asbestos defense lawyers representing BASF in asbestos defense matters to 

make false, misleading and incorrect representations and/or material omissions to 

asbestos claimants, asbestos claimants’ counsel, presiding asbestos courts and other 

tribunals; and

i. Concealing and covering-up the fraudulent, tortious and/or illegal aspects 

of the BCAD Enterprises’ conduct and operations.

152. The Lawyer Perpetrators’ particular roles, functions and activities it, 

acting as aforesaid, performed included:

a. Representing BASF and its predecessors in asbestos claims directly or 

indirectly through local counsel as necessary; 

b. Collecting and spoliating and/or directing the collection and spoliation of 

evidence that BASF’s talc ore, Emtal talc and Emtal products contained asbestos, as 

described above;

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c. Addressing or responding to asbestos insurance matters as required or 

requested as national counsel; 

d. Retaining, instructing, guiding and managing local defense counsel 

handling asbestos injury claims lawsuits against BASF. In particular, Cahill Gordon 

handled providing the documents and evidence upon which BASF’s fraudulent 

defense was based to local counsel so that they would, in turn, disseminate BASF’s 

fraudulent and unwavering public “no asbestos in Emtal talc” position;

e. Preparing template and stock pleading, discovery and motions documents 

for use by local counsel in asbestos injury claim lawsuits that contained information 

Cahill Gordon knew to be false or misleading regarding the presence of asbestos fiber 

in BASF’s talc ore, Emtal talc and Emtal products and/or the existence of evidence 

tending to prove the existence of asbestos fiber BASF’s talc ore, Emtal talc and Emtal 

products; 

f. Falsely and incorrectly stating and representing to asbestos claimants, 

asbestos claimants’ counsel and presiding asbestos courts and other tribunals in 

correspondence, responses to discovery and/or pleadings or motion papers that 

BASF’s talc ore, Emtal talc and Emtal products did not contain asbestos and/or that 

there was no evidence that BASF’s talc ore, Emtal talc and Emtal products contained 

asbestos;

g. Instructing and directing BASF’s local asbestos counsel to, knowingly or 

unknowingly, falsely state and represent to asbestos claimants, asbestos claimants’ 

counsel and presiding asbestos courts and other tribunals, that BASF’s talc ore, Emtal 

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talc and Emtal products did not contain asbestos and/or that there was no evidence 

that BASF’s talc ore, Emtal talc and Emtal products contained asbestos;

h. Suborning or otherwise procuring false unsworn and sworn 

representations, including false affidavits, false and incorrect expert reports and 

discovery response verifications by BASF employees, BASF officers, and/or BASF 

consultants and experts which they knew were to be provided to asbestos claimants, 

asbestos claimants’ counsel and in some cases presiding asbestos courts and other 

tribunals with the intention that they would be relied upon;

i. Threatening asbestos injury claimants and/or their counsel with the 

possibility of sanctions or penalties if asbestos claims or suits were not discontinued 

by questioning counsels’ good faith basis to continue the claims in the face of the 

BASF Perpetrators’ and/or the Lawyer Perpetrators’ false representations that 

BASF’s talc ore, Emtal talc and Emtal products did not contain asbestos and/or that 

there was no evidence that BASF’s talc ore, Emtal talc and Emtal products contained 

asbestos;

j. Filing or directing local counsel to file motions or other court documents 

that they knew, or should have known, falsely and incorrectly stated that BASF’s talc 

ore, Emtal talc and Emtal products did not contain asbestos and/or that there was no 

evidence that BASF’s talc ore, Emtal talc and Emtal products contained asbestos as a 

basis for judicial action in BASF’s favor;

k. Drafting and obtaining agreements to and execution of the Westfall case 

confidentiality agreement;

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l. Drafting and obtaining agreement to and execution of stipulations or 

agreements of dismissal, releases and other claim resolution documents from asbestos 

injury claimants based upon false and incorrect representations that BASF’s talc ore, 

Emtal talc and Emtal products did not contain asbestos and/or that there was no 

evidence that BASF’s talc ore, Emtal talc and Emtal products contained asbestos; 

m. Concealing and covering-up BASF’s spoliation of evidence; and,

n. Concealing and covering-up the fraudulent, tortious and/or illegal aspects 

of the BCAD Enterprise’s conduct and operations.

G. Representative Misrepresentations and Material Omissions in 

Furtherance of the Fraudulent Asbestos Defense Scheme

153. After the Westfall case was settled and BASF’s asbestos documents were 

collected and either destroyed or secreted away, whenever an asbestos claim was made 

against BASF between 1984 and 2009, the Lawyer Perpetrators would systematically and 

uniformly communicate with the claimant’s counsel either directly through Cahill 

Gordon personnel or indirectly through BASF’s local counsel and state or otherwise 

represent that: (a) BASF’s talc ore, Emtal talc and Emtal products did not contain any 

asbestos and/or there was no evidence that BASF’s talc ore, Emtal talc and Emtal 

products contained asbestos; and, (b) there was in fact no good faith basis to allege or 

claim that BASF’s talc ore, Emtal talc and Emtal products contained asbestos and thereby 

injured the claimant. 

154. To purportedly support and corroborate these false and misleading 

representations, the Lawyer Perpetrators, with BASF’s knowledge, authorization and/or 

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assistance, would routinely supply, or would direct BASF’s local counsel to supply, 

asbestos injury claimants’ counsel handling cases against BASF with one or more 

documents which the Defendants knew were false and misleading when considered 

without the contrary evidence in Defendants’ possession or which they had destroyed or 

otherwise spoliated: 

a. The May 8, 1989 affidavit by Mr. William H. Ashton (“Ashton 

Affidavit”). In this affidavit Mr. Ashton, a purported expert on asbestos in talc, avers 

that Emtal talc did not contain asbestos fibers based upon data and information he 

reviewed that was supplied by Cahill Gordon and/or BASF. While Mr. Ashton cites 

to a few studies supporting his claimed conclusion, the data and studies he reviewed 

notably did not include any of the studies with positive asbestos findings that 

Defendant Hemstock and Mr. Triglia testified about during their 1983 Westfall case 

depositions even though his affidavit cites to, and included as an exhibit, excerpts of 

deposition testimony of another witness taken in that case which purportedly 

demonstrated that the talc ore and products did not contain asbestos. A copy of the 

Ashton Affidavit is appended as Exhibit 4 and incorporated herein by reference; 

b. A report purportedly prepared by Dr. F. D. Pooley (“Pooley Report”). 

Dr. Pooley, based on a purported analysis of two Johnson Mine talc samples that were 

allegedly collected in 1961, finds and concludes that the two Johnson Mine talc 

samples made available to him did not contain any fibrous mineral particles. A copy 

of the Pooley Report is appended as Exhibit 5 and incorporated herein by reference;

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c. One or more affidavits by Mr. Charles D. Carter, a BASF employee who 

self-identifies himself in his affidavits as “Director of Joint Ventures and Resources 

of Engelhard Corporation” (“Carter Affidavits”). Similar in content, the Carter 

Affidavits over the years averred some or all of the following alleged facts: (i) that 

the Johnson Mine was acquired by Eastern Magnesia Talc Company in 1967; (ii) that 

Johnson Mine was closed in 1983 for economic reasons; (iii) that the Johnson Mine

following its closure and non-use became filled with water making it impossible to 

obtain any samples of talc from the mine; (iv) that Engelhard did not possess any 

samples of the Johnson Mine talc; and (v) that “Engelhard does not currently possess 

any testing data other than the data provided...by way of the Ashton Affidavit and the 

report of Dr. Pooley.” Exemplifying these Carter Affidavits are Mr. Carter’s 

September 20, 1988 Affidavit (appended as Exhibit 6), his June 19, 1989 Affidavit 

(appended as Exhibit 7) and his August 18, 1989 Affidavit (appended as Exhibit 8), 

all of which are incorporated herein by reference; 

d. Interrogatory answers verified by Mr. Carter or other BASF employees, 

including on occasion members of BASF’s in-house counsel, in which BASF, under 

oath, represented Emtal talc did not contain any asbestos and/or provided selected 

references to tests or studies indicating Johnson Mine talc did not contain asbestos, 

such as the Pooley Report or other studies referenced in the Ashton Affidavit, but 

omits to mention or reference: (1) any of the studies which had positive findings for 

asbestos that were in BASF’s possession or knowledge at the time the Westfall case 

discovery was conducted; or, (2) any of Defendant Hemstock’s and Mr. Triglia’s 

Westfall case deposition testimony stating that the asbestos was found in tests and 

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assays of Emtal talc. Exemplifying these interrogatory responses are BASF’s 2002 

Reponses to Plaintiff’s First Standard Set of Liability Interrogatories in Plaintiff 

Chrenick’s New York asbestos injury claim law suit, Chernick v. ABB (appended as 

Exhibit 10), all of which are incorporated herein by reference. Additional illustrative 

interrogatory responses are also referred to in the paragraphs below. 

155. While the full and entire extent and scope of Defendants’ pattern and 

practice of conduct and material omissions is not known to Plaintiffs due to the 

clandestine nature of their wrongful actions, conduct and concealments, along with 

BASF’s refusal to provide complete details regarding same in the Paduano suit, the 

existence, continuity, collusiveness, breadth and longstanding nature of Defendants’ 

pattern and practice of fraudulent and unlawful activity are indicated, illustrated and 

exemplified by the incidents and events set forth in the following paragraphs.

a. The 1988 and 1989 Misrepresentations and Material Omissions to 

Counsel for Tireworker Asbestos Injury Litigation Claimants 

Suing BASF in the United States Eastern District of Pennsylvania 

and Southeastern Pennsylvania State Courts.

156. On or about May 17, 1989, Cahill Gordon attorney, Defendant Dembrow, 

sent via Federal Express a letter to a Philadelphia, Pennsylvania lawyer who was 

representing at the time twenty-eight (28) tireworker plaintiffs in pending Pennsylvania 

Federal and State Court asbestos injury lawsuits that had named Engelhard and Eastern 

Magnesia as defendants in the suits. (These twenty-eight Pennsylvania tireworker 

asbestos claimants are hereinafter referred as the “Pennsylvania Tireworker 

Claimants.”) A true and correct copy of this letter uncovered during the Paduano suit’s 

spoliation discovery is appended as Exhibit 11 and incorporated herein by reference. In 

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this letter, Cahill Gordon states that during an August 1988 face to face meeting at the 

Montgomery County, Pennsylvania Courthouse, between the Pennsylvania Tireworker 

Claimants’ lawyer, Cahill Gordon attorneys, Messrs. Craig Newman and Eric S. Sarner

(“Sarner”), and BASF’s local counsel, BASF’s attorneys then and there affirmatively 

represented to the Pennsylvania Tireworker Claimants’ counsel that “the talc 

manufactured by Emtal [sic] did not contain any asbestos.” The copy of the letter, also 

establishes that blind copies of it were sent to, among others, Cahill Gordon attorneys,

Defendant Sloane and Mr. Sarner. Mr. Sarner’s office at the time was located in Cahill 

Gordon’s Washington, D.C. offices. Defendant Sloane’s office was in New York City. 

157. According to Cahill Gordon’s May 17, 1989 letter (Exhibit 11), between 

August 1988 and May 17, 1989, a number of in person meetings, telephone calls and 

letters by and between BASF’s local counsel and the Pennsylvania Tireworker 

Claimants’ counsel occurred during which BASF and its attorneys requested that the 

Pennsylvania Tireworker Claimants’ asbestos injury claims be voluntarily ended against 

BASF. During these communications BASF’s counsel reiterated and repeated the 

misrepresentations and omissions of material fact regarding absence of any asbestos in 

Emtal talc and the non existence of any contrary evidence as scripted by the Lawyer 

Perpetrators. One letter, according to the May 17, 1989 letter, tendered to the 

Pennsylvania Tireworker Claimants’ lawyer a copy of the Carter Affidavits concerning 

the location of the Johnson Mine and its alleged closure for “economic reasons.” 

158. The purpose and intent of Cahill Gordon’s May 17, 1989 letter (Exhibit 

11), was to further Cahill Gordon’s efforts to convince the Pennsylvania Tireworker 

Claimants’ lawyer to voluntarily dismiss BASF. In furtherance of this goal, Cahill 

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Gordon’s May 17, 1989 letter continued the misrepresentations and misleading omissions

of material facts by offering the newly coined Ashton Affidavit. In previewing the 

contents of the Ashton Affidavit for claimants’ counsel, the Cahill Gordon May 17, 1989 

letter twice called out to the claimants’ counsel the claimed fact that various assays and 

tests on Johnson Mine talc referred to in the Ashton Affidavit established that no asbestos 

was present. 

159. On June 21, 1989, Defendant Dembrow sent via Federal Express yet 

another letter and enclosures to the Pennsylvania Tireworker Claimants’ lawyer with 

blind copies sent to, inter alia, Defendant Sloane and Mr. Sarner. In this letter, Cahill 

Gordon provided the Pennsylvania Tireworker Claimants’ counsel with a copy of Dr. 

Pooley’s purported exculpatory analysis of Johnson Mine talc along with another Carter 

Affidavit, this one dated June 19, 1989 (See Exhibit 7). In this June 19, 1989 affidavit, 

Mr. Carter avers that the closed Johnson Mine was now filled with water so no samples 

could be obtained and, additionally, that Engelhard did not currently possess any samples 

of the talc produced by the Johnson Mine. A copy of the June 21, 1989 letter is appended 

as Exhibit 12 and is incorporated herein by reference.

160. Subsequently, on or about, July 19, 1989, the Pennsylvania Tireworker 

Claimants’ lawyer sent a letter to Sarner at Cahill Gordon’s Washington D.C office, with 

a copy to Defendant Dembrow at Cahill Gordon’s New York office, both of which were 

sent by U.S. Mail. Claimants’ counsel in this letter questioned BASF’s representations to 

him that Emtal talc did not contain any asbestos, based upon references to the Johnson 

Mine appearing in a report issued by the Mine Health and Safety Administration 

(“MHSA”) that his law firm had obtained through a Freedom of Information Act request. 

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The MHSA report referred to in the letter indicated that samples of Johnson Mine’s talc 

that MHSA had obtained and analyzed contained fibrous mineral contaminants. The 

Pennsylvania Tireworker Claimants’ lawyer’s letter additionally informed Cahill Gordon 

that:

[W]e had obtained definitive product identification evidence of the presence 

of [Engelhard/Eastern Magnesia’s] talc at Firestone in Pottstown, PA, and 

[would] name [Engelhard/Eastern Magnesia] in all future Firestone cases. 

If, of course, we ultimately decide to let your client out of the B.F. Goodrich 

litigation, we will also dismiss them from the Firestone cases.

A copy of this letter is appended as Exhibit 13 and is incorporated herein by 

reference. 

161. On or about July 28, 1989, Cahill Gordon attorney Sarner telefaxed a letter 

on behalf of BASF replying to the Pennsylvania Tireworker Claimants’ lawyer’s July 17, 

1989 letter. Cahill Gordon’s letter purportedly explained how and why the MHSA report 

was flawed, incorrect, and contrary to the evidence Cahill Gordon had previously 

provided the Claimants’ lawyer by means of the Ashton Affidavit and Pooley Report. 

Cahill Gordon, in the July 28, 1989 letter, once again falsely represented to Claimants’

counsel that BASF’s talc did not contain asbestos, stating: “Thus no EmTal [sic] talc was 

found to contain asbestos fibers,” and “[w]e again urge that on the basis of all of the 

affidavits supplied to you there is no good faith basis for keeping Engelhard and EmTal 

[sic] in these cases.” Appended as Exhibit 14 is a copy of Cahill Gordon’s July 28, 1989 

letter, which is incorporated herein by reference.

162. On or about August 21, 1989, Cahill Gordon’s Sarner sent another letter 

via Federal Express to the Pennsylvania Tireworker Claimants’ lawyer’s Philadelphia 

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office. In this letter, Cahill Gordon submitted, in lieu of answering interrogatories, the 

original of another Carter Affidavit, which was dated August 18, 1989. A copy of Cahill 

Gordon’s letter is appended as Exhibit 15 and incorporated herein by reference. (The 

referenced Carter affidavit is appended as Exhibit 8 and incorporated herein by 

reference.) In the referenced Carter Affidavit, Mr. Carter under oath states: “In addition, 

Engelhard does not currently possess any testing data other than the data provided to you 

by way of the Ashton Affidavit and the report of Dr. Pooley.” The letter also establishes 

that copies of it were sent to, inter alia, Defendants Sloane and Dembrow at their New 

York offices.

163. At no time during or in any of Cahill Gordon’s communications or 

correspondence to the Pennsylvania Tireworker Claimants’ counsel, including the 

affidavits or reports Cahill Gordon provided to him in support of the representation that 

BASF’s talc did not contain asbestos, was there ever any mention or reference by the 

Lawyer Perpetrators, BASF’s local defense counsel, or the BASF Perpetrators to the fact 

that contrary and inculpating evidence developed in the Westfall case’s discovery existed.

Neither was there any mention or reference whatsoever to BASF’s gathering and 

spoliation of all contrary and inculpatory evidence in 1984. These material 

misrepresentations and omissions occurred and were committed despite the fact the 

Lawyer Perpetrators were aware of these facts and knew and appreciated the relevance of 

such material information to asbestos injury claimants. 

164. Following the exchange of correspondence and documents described 

above, and in obvious and reasonable reliance on the communications, correspondence, 

corroborating affidavits and corroborating reports set forth above, some time in or about 

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September of 1989, the Pennsylvania Tireworker Claimants voluntarily discontinued or 

dismissed their asbestos injury claims as to the Engelhard Defendants, to their detriment 

and loss. 

165. As soon as the Pennsylvania Tireworker Claimants’ lawyer agreed to have 

his clients voluntarily dismiss their State and Federal lawsuits against Engelhard, the 

Lawyer Perpetrators began executing a campaign to extend and parlay this successful 

execution of the Fraudulent Asbestos Defense Scheme to other asbestos injury litigations 

around the country. Even before the dismissals and discontinuances of the Pennsylvania 

Tireworker Claimants’ cases were filed in the presiding courts, starting in late August 

1989, Cahill Gordon put in motion what would become, over the years, a systematic 

pattern and practice to obtain voluntary dismissals or cheap token settlements by writing 

to other asbestos claimants’ counsel directly through its own lawyers or indirectly 

through local BASF defense counsel it controlled and: (a) providing the asbestos 

claimants’ counsel with copies of the false and misleading Ashton Affidavit, Pooley 

report and Carter Affidavits; (b) informing the targeted asbestos injury claimant lawyer 

that the Pennsylvania Tireworker Claimants’ counsel (and later other asbestos claimant 

lawyers as well) had voluntarily dismissed the Engelhard Defendants based upon 

Engelhard’s representations and purported corroborating expert reports stating that there 

was not any asbestos in Emtal talc (i.e.- Ashton Affidavit; and Pooley Report); and (c) 

requesting that the asbestos injury claimants’ counsel likewise voluntarily dismiss their 

asbestos suits against BASF in order to avoid putting BASF through unnecessary 

litigation expenses without a good faith basis to sue, thereby intimating that the asbestos 

injury claimants and their counsel might risk being assessed sanctions for pursuing a 

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claim not brought in good faith. Exemplifying Cahill Gordon’s efforts in this vein are 

two similar October 2, 1989 letters sent by different BASF local counsel; one mailed to a 

Cleveland, Ohio tireworker asbestos claimants’ lawyer (appended as Exhibit 16) and 

another mailed to a Kansas City, Missouri tireworker claimants’ lawyer (appended as 

Exhibit 17). Exhibits 16 and 17 are incorporated herein by reference.

b. November 19, 1990 Misrepresentations in BASF’s Answers to 

Plaintiffs’ Standard Interrogatory Answers in In Re: All 

"Asbestos" Cases Presently Pending Before and All Future Cases 

Assigned to the Honorable James E. Mies, Circuit Court Judge, 

(Circuit Court, Wayne County, Michigan).

166. BASF’s predecessor was a defendant in a number of asbestos injury suits 

filed and pending in the Wayne County, Michigan, Circuit Court in the late 1980s and/or 

early 1990s. In response to standard interrogatories directed to BASF by the asbestos 

claimants in the Wayne County State Court actions (“Wayne County Interrogatories”),

which sought disclosure of information about Engelhard’s talc products, verified answers 

on behalf of BASF’s predecessor Pita Realty Limited (identified in the Answers to 

Interrogatories as being successor to Eastern Magnesia) were served on the asbestos 

claimants’ counsel by means of U.S. Mail on or about November 19, 1990. A copy of 

the Answers to the Wayne County Interrogatories is appended as Exhibit 18 and 

incorporated herein by reference.

167. Cahill Gordon lawyers, including Sarner and Defendant Sloane, whose 

names appear on the Answers to the Wayne County Interrogatories as co-counsel to Pita 

Reality Limited, prepared and/or reviewed the interrogatory answers for signing and/or 

verification by BASF. The Answers were verified under oath on behalf of BASF by Mr. 

Carter.

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168. In BASF’s “Preliminary Statement” in its Answers to the Wayne County 

Interrogatories, BASF, through Cahill Gordon and BASF’s local counsel, stated in 

pertinent part:

... Pita, formerly known as Eastern Magnesia Talc Company, was engaged 

in the mining and milling of talc from a single mine located in Johnson, 

Vermont from 1967 to 1983. Pita previously has provided to plaintiffs' 

counsel an affidavit and supporting materials demonstrating that the talc 

from this mine did not contain asbestos....

***

Pita hereby incorporates by reference this preliminary statement into the 

response to each interrogatory.

169. In response to Interrogatory No. 34 of the Wayne County Interrogatories, 

which inquired into whether any person ever served as a consultant to BASF’s Engelhard 

companies in any manner regarding the potential medical, toxicologic, or industrial 

hygiene aspects of asbestos or any asbestos-containing product, BASF responded:

Not Applicable. In addition, Defendant has previously supplied documents 

to plaintiffs' counsel that indicate that its talc products did not contain 

asbestos, including an affidavit prepared by William Ashton. These 

documents are in the possession of plaintiffs' counsel.

170. In response to Interrogatory No. 108 of the Wayne County Interrogatories, 

which inquired into whether BASF’s Engelhard companies pursuant to its record 

destruction or retention policy, or otherwise, destroyed any documents, records or 

writings pertaining to health hazards of asbestos, Cahill Gordon’s answer on behalf of 

BASF responded: “Pita does not believe that it destroyed such records.”

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171. At no time in any of BASF answers to the Wayne County Interrogatories 

that Cahill Gordon prepared and/or reviewed for signing and verification by BASF, were 

the Wayne County asbestos claimants or their counsel ever fairly (or otherwise) informed 

by the Lawyer Perpetrators, or the BASF Perpetrators, that inculpating facts and evidence 

existed which contradicted that which had been represented in the verified interrogatory 

answers or in the Ashton Affidavit that was referred to in the interrogatory answers, such 

as that which had been developed and obtained by the plaintiff in the Westfall case prior 

to Defendants implementing their Fraudulent Asbestos Defense Scheme. There was no 

mention or reference in the Answers to the Wayne County Interrogatories to the BASF 

Perpetrators’ gathering and spoliation of all contrary and inculpating asbestos claim 

evidence in 1984. These material misrepresentations and omissions occurred and were 

committed despite the fact the BASF Perpetrators and the Lawyer Perpetrators were 

aware of these facts, despite the fact they knew and appreciated the relevance of the 

subject information to asbestos injury claimants, and despite the fact they were under a 

duty to truthfully and fairly answer and provide discovery to adverse parties in litigation.

172. Cahill Gordon and BASF’s fraudulent and deceitful efforts aimed at 

Michigan asbestos injury claimants were successful. According to an April 23, 1992 

Cahill Gordon letter addressed to other asbestos injury claimants’ counsel in Ohio, the 

Michigan State Court Tireworkers’ asbestos injury cases against BASF’s predecessors 

were voluntarily dismissed after “the plaintiffs’ counsel had been ... provided with the 

Ashton materials....” See Cahill Gordon letter of April 23, 1992, appended as Exhibit 19

and discussion of this letter infra. A copy of specific Michigan dismissal orders were not 

produced in the Paduano suit materials.

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c. November 1990 and October 1991 Misrepresentations in the 

Answers to Plaintiffs’ Master Interrogatories in In Re: Northern 

Ohio Tireworker Asbestos Litigation (C.P. Summit Cty., Ohio).

173. In or about the late 1980s and/or early 1990’s, BASF’s predecessors,

Engelhard Corporation, Eastern Magnesia and Pita Realty Limited, were parties to a 

number of tireworker asbestos injury suits that were filed and pending in the Court of 

Common Pleas for Summit County, Ohio, and assigned to Judge William H. Victor. In 

connection with these Northern Ohio Tireworker cases, BASF’s predecessor responded 

under oath to Plaintiffs’ Questionnaire and First Request for Production of Documents 

(“Tireworkers’ Questionnaire”) and Plaintiffs’ Master Discovery Requests (“Summit 

County Master Interrogatories”). 

174. The Tireworkers’ Questionnaire sought disclosure of information from 

BASF’s predecessors about Engelhard’s talc products used at a number of rubber product 

manufacturing companies. On or about November 21, 1990, BASF’s counsel served 

verified responses to this discovery upon Plaintiffs’ counsel by regular U.S. Mail. A 

copy of BASF’s verified Tireworkers’ Questionnaire answers is appended as Exhibit 20 

and incorporated herein by reference.

175. BASF’s answers to the Tireworkers’ Questionnaire identify Cahill Gordon 

lawyers Defendant Sloane, Mr. Sarner and Michael D. Sullivan, Esq. as being “of 

counsel” to BASF’s predecessors in the Summit County, Ohio, cases. 

176. Cahill Gordon, as national asbestos counsel to BASF, prepared and/or 

reviewed BASF’s predecessors’ answers to the Tireworkers’ Questionnaire for signing 

and/or verification by BASF’s predecessors. 

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177. The answers to the Tireworkers’ Questionnaire were verified by Mr. 

Carter on behalf of BASF on November 15, 1990. The answers state that Mr. Carter 

“participated in the gathering of the records for this litigation, which have been turned 

over to counsel.” See Exhibit 20, Interrogatory No. 20(b).

178. BASF’s predecessors’ Preliminary Statement to the Tireworkers’ 

Questionnaire reads in pertinent part:

...For purposes of simplifying the responses to this Questionnaire, the name 

Pita when used herein shall refer collectively to Pita, EmTal [Eastern 

Magnesia], and, Engelhard.

....Pita, formerly known as Eastern Magnesia Talc Company, was engaged 

in the mining and milling of talc from a single mine located in Johnson, 

Vermont from 1967 to 1983. Pita previously has provided to plaintiffs' 

counsel an affidavit and supporting materials demonstrating that the talc 

from this mine did not contain asbestos....

***

Pita hereby incorporates by reference this preliminary statement into the 

response to each question.

179. In its answer to Question No. 2 of the Tireworkers’ Questionnaire, which 

generally sought information about whether BASF’s predecessors had been involved in 

the mining, milling, manufacture, processing, sale, supplying or distribution of talc, 

soapstone, or asbestos-containing products at any time, BASF predecessors stated under 

oath: 

With respect to talc only, yes. Pita did not mine, mill, manufacture, process, 

market, distribute, or sell asbestos or asbestos-containing products. Pita 

was engaged in the mining and milling of talc from a single mine located in 

Johnson, Vermont from 1967 to 1983. Pita previously has provided to 

plaintiffs' counsel an affidavit and supporting materials demonstrating that 

the talc from this mine did not contain asbestos.

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180. In its answer to Question No. 2(e) of the Tireworkers’ Questionnaire, 

which specifically asked whether BASF’s predecessors’ products contained crocidolite, 

amosite, tremolite or chrysotile asbestos, or any combination of them, and to specify the 

qualitative percentage of the particular form of asbestos fiber to the whole amount of 

asbestos in the product, BASF’s predecessors stated under oath:

(e). No. Plaintiffs' counsel has previously been provided with evidence, 

including an affidavit, which proves that Emtal talc did not contain asbestos.

181. In answer to Question No. 4 of the Tireworkers’ Questionnaire, which 

specifically asked how BASF’s predecessors’ talc, soapstone, or asbestos-containing 

products were packaged and shipped, BASF predecessors stated under oath:

Pita did not mine, mill, manufacture, process, market, distribute, or sell 

asbestos or asbestos-containing products.... 

182. At no time in any of BASF’s answers to the Tireworkers’ Questionnaire

which Cahill Gordon prepared and/or reviewed for signing and verification by BASF, 

were the Northern Ohio Tireworker claimants or their counsel ever fairly (or otherwise) 

informed by the Lawyer Perpetrators, or by the BASF Perpetrators, that inculpatory facts 

and evidence existed that contradicted what was represented on behalf of BASF’s 

predecessors in the answers to the Tireworkers’ Questionnaire or in the affidavit referred 

to in the Tireworkers’ Questionnaire, such as that which was developed and obtained by 

the plaintiff in the Westfall case. There was no mention or reference in the Tireworkers’ 

Questionnaire answers to the BASF Perpetrators’ gathering and spoliation of all contrary 

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and inculpating asbestos claim evidence in 1984. These material misrepresentations and 

omissions occurred and were committed despite the fact the BASF Perpetrators and the 

Lawyer Perpetrators were aware of these facts, knew and appreciated the relevance of the 

subject information to asbestos claimants, and were under a duty to truthfully and fairly 

answer and provide discovery to adverse parties in litigation.

183. The Summit County Master Interrogatories sought disclosure of 

information from BASF’s predecessors about Engelhard’s talc products. In or about 

October 1991, verified answers to the Summit County Master Interrogatories on behalf of 

BASF’s predecessors were served on the Northern Ohio Tireworker claimants’ counsel. 

A copy of BASF’s answers to the Summit County Master Interrogatories is appended as 

Exhibit 21 and incorporated herein by reference. The date alleged is based upon the date 

of the document’s verification by Mr. Carter.

184. Lawyers at Cahill Gordon, as counsel to BASF’s predecessors at the time,

prepared and/or reviewed the answers to the Summit County Master Interrogatories for 

signing and/or verification by BASF. The answers were verified for BASF under oath by 

BASF’s Mr. Carter based upon, according to his verification, information gathered by 

others.

185. BASF’s predecessors’ “Preliminary Statement” to its answers to the 

Summit County Master Interrogatories reads in pertinent part:

...Pita, formerly known as Eastern Magnesia Talc Company, was engaged 

in the mining and milling of talc from a single mine located in Johnson, 

Vermont from 1967 to 1983. Pita previously has provided to plaintiffs' 

counsel an affidavit and supporting materials demonstrating that the talc 

from this mine did not contain asbestos....

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***

Pita hereby incorporates by reference this preliminary statement into the 

response to each interrogatory.

186. In answer to Interrogatory No. 30 of the Summit County Master 

Interrogatories, which asked about testing, studies or surveys on BASF’s products, 

BASF’s predecessors’ response lists a number of studies purporting to corroborate 

BASF’s general denial that its talc products contained any asbestos. However, not one of 

the contrary and studies on Engelhard’s talc showing it contained asbestos or any of the 

contrary and inculpating statements about the existence of asbestos in Engelhard’s talc 

that were made or discussed during the Hemstock and Triglia Westfall case depositions 

were listed or otherwise disclosed to the Northern Ohio Tireworker claimants’ counsel.

There was no qualification or disclosure provided in the answers to the Summit County 

Master Interrogatories that alerted or informed Northern Ohio Tireworker claimants’ 

counsel of the fact that the BASF Perpetrators had collected all documents relating to 

Emtal talc in 1984 following the settlement of the Westfall case. There also was not any 

disclosure on what was the fate or the whereabouts of the talc documents and evidence 

the BASF Perpetrators had collected in 1984 following the Westfall case settlement. 

These material misrepresentations and omissions occurred and were committed despite 

the fact the BASF Perpetrators and the Lawyer Perpetrators were aware of these facts, 

knew and appreciated the relevance of the subject information to asbestos claimants, and 

were under a duty to truthfully and fairly answer and provide discovery to adverse parties 

in litigation.

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187. In response to Interrogatory No. 66 of the Summit County Master 

Interrogatories, which inquired into whether BASF was contending the Northern Ohio 

Tireworker claimants’ injuries were not causally related to asbestos exposure, Cahill 

Gordon’s prepared responses on behalf of BASF stated:

Pita does not currently make any contentions on the subject, but asserts that 

if plaintiffs have injuries related to asbestos exposure, Pita cannot be liable 

therefore since its talc did not contain asbestos.

Here, once again, not one of the contrary and inculpating talc studies showing the presence 

of asbestos in Emtal talc or statements made or discussed during Hemstock’s and Triglia’s 

Westfall case depositions was disclosed to the Northern Ohio Tireworker claimants’ 

counsel. There were also not any disclosures about BASF’s collection of all documents 

relating to Emtal talc in 1984 following the Westfall case settlement, or the existence or 

fate of the documents and evidence.

188. The misrepresentations and material omissions embodied in the Answers 

to the Summit County Master Interrogatories were repeated and renewed years later on or 

about August 31, 1994, when Cahill Gordon lawyers, Defendant Sloane and his partner, 

Allen S. Joslyn (“Joslyn”), adopted them in their entirety as the Response of Eastern 

Magnesia Talc Company to Master Interrogatories in the Summit County case captioned 

William F. Clark, et al. v. Owens Corning Fiberglass Corp., et al., Case No. ACV-94-04-

1107, filed by the Law firm of Bevan & Economus. A copy of Cahill Gordon’s filing on 

behalf of BASF’s predecessor is appended as Exhibit 22 and incorporated herein by 

reference.

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d. April 2002 and December 22, 2010 Misrepresentations and 

Material Omissions in Engelhard’s Correspondence to Asbestos 

Claimants’ Counsel and in Responses to Plaintiffs’ First Standard 

Set of Liability Interrogatories in the New York City Asbestos 

Litigation Matter of Steven Chernick et. al. v. ABB Lumus Global, 

Inc.

189. On or about October 29, 2001, BASF’s predecessor Engelhard Minerals 

and Chemical Corporation was named and joined as a defendant in Plaintiff Chernick’s

asbestos injury suit filed in the Supreme Court of New York captioned Steven Chernick et 

al. v. ABB Lumus Global, Inc., Index No. 01-010116741 (“Chernick case”). The 

Chernick case contended that Engelhard’s talc was used as a component ingredient of 

“Bondo” auto body repair filler, which product caused Mr. Chernick’s case asbestos 

injury. The Chernick case was part of the New York Supreme Court’s “New York City 

Asbestos Litigation Program.”

190. On or about April 15, 2002, Gideon Mark, Esq., a local New York City 

defense attorney who, had been retained to defend BASF’s predecessor, Engelhard, in the 

Chernick case under Cahill Gordon’s control, sent the Chernick plaintiffs’ New York 

City counsel, Early, Lucarelli, Sweeney & Strauss, a letter and several enclosures, 

including a copy of the Ashton Affidavit and the Pooley Report. The purpose of the 

letter was to convince the Chernick’s counsel and the Chernick plaintiffs to voluntarily 

dismiss Engelhard from the case on the claimed, but false, basis that Engelhard’s talc did 

not contain asbestos. A copy of the letter is appended as Exhibit 23 and incorporated 

herein by reference. The letter was sent via Federal Express, and subsequently, on May 

10, 2002, a copy was also telefaxed to another recipient. 

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191. The April 15, 2002 letter’s representations about the nature and content of 

Engelhard’s talc were supported by Mr. Mark’s references to the Ashton Affidavit, the 

Pooley Report, and a third study, all provided to Mr. Marks by BASF and Cahill Gordon, 

all of which purported to establish, in the letter’s own words, “that the talc Engelhard

Corporation ... or any of its present or former subsidiaries allegedly sold to Bondo 

Corporation was asbestos free.” After summarizing the purported exculpatory findings of 

the three studies provided, Mr. Mark’s letter then concluded:

Given the foregoing, there appears to be no basis for your clients to assert 

claims against Engelhard. We hereby request that you dismiss Engelhard 

from this action....

192. Cahill Gordon, as national asbestos counsel to BASF and its predecessors,

assisted in the preparation and/or review of the April 15, 2002 letter prior to it being sent 

to the Chernick plaintiffs’ counsel. Acting with intention to deceive, Cahill Gordon and 

BASF’s predecessor, Engelhard, authorized and/or consented to Mr. Mark’s sending the 

letter which contained false and misleading material misrepresentations and omissions.

As attorneys representing BASF in a court matter, Cahill Gordon and its lawyers, as well 

and other lawyers representing BASF at the time, including BASF’s in-house lawyers, 

were under a strict, longstanding statutory duty under New York law, N.Y. Judiciary Law 

§487, to not commit any deceit or collusion, or consent to any deceit or conclusion, with 

the intent to deceive the court or any party. 

193. On or about April 16, 2002, BASF’s predecessor, Engelhard, responded 

under oath to “Plaintiffs’ First Standard Set of Liability Interrogatories” served within the 

Chernick case (“Chernick Interrogatories”). The Responses to the Chernick

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Interrogatories are attached as (Exhibit 10). According to the Affirmation of Service 

appended to the Responses to the Chernick Interrogatories, this written discovery was 

served upon the parties’ counsel to the case by U.S. mail.

194. Engelhard’s answers to the Chernick Interrogatories were verified on its 

behalf by Mr. Mark, on April 16, 2002. His verification states:

Working in conjunction with Engelhard, I have prepared and reviewed the 

foregoing Responses to First Standard Set of liability Interrogatories. I 

know the contents thereof to be true, based on factual analyses conducted 

with and on behalf of Engelhard.

195. The response to Interrogatory No. 1 of the Chernick Interrogatories states 

that Michael J. Hassett, Esq., who is identified as Associate General Counsel for 

Engelhard Corporation, coordinated Engelhard's Responses to the Chernick

Interrogatories. 

196. Cahill Gordon, as national asbestos counsel to BASF and its predecessors,

assisted in the preparation and/or reviewed the Responses to the Chernick Interrogatories 

prior to BASF’s local counsel’s verification and service of them upon counsel in the 

Chernick case. 

197. The Responses to the Chernick Interrogatories repeatedly, and falsely with 

intention to deceive, stated and represented that Engelhard had not mined, milled, 

manufactured, processed, marketed, distributed, or sold asbestos or asbestos containing 

products. Exemplifying such representations is the response to Interrogatory No. 52, 

which reads:

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Interrogatory No. 52:

Does your company recognize that it was foreseeable that people working 

in the same area where your asbestos products were being used or installed 

would inhale and/or ingest asbestos fibers emitted from your product?

Response to Interrogatory No. 52:

Engelhard recognizes that, in general, it might be foreseeable that people 

working in the same area where asbestos products are being used or 

installed might inhale and/or ingest asbestos fibers. However, Engelhard 

has not mined, milled, manufactured, processed, marketed, distributed, or 

sold asbestos or asbestos containing products.

198. The Responses to the Chernick Interrogatories referred to the same three 

purported exculpatory studies on Engelhard’s talc that were provided to the Chernick

claimants’ counsel in the April 15, 2002 letter in support of Engelhard’s representations 

that “the talc supplied to Bondo by Engelhard’s former subsidiary, EMTal [sic] was 

asbestos-free.” See Exhibit 10, Interrogatories Nos. 3 and 86. 

199. Interrogatory No. 63 of the Chernick Interrogatories directly asked 

BASF’s predecessor, Engelhard, about prior depositions of its employees. Engelhard’s 

answer under oath to this question reads:

Interrogatory No. 63:

If any of your employees or officers have testified at trial or by deposition 

or before any Congressional Committee or administrative agency 

concerning asbestos exposure, pulmonary or asbestos-related diseases or 

Industrial hygiene relating to asbestos use, state:

a. The name, address and title of each person who testified;

b. The date, location and forum of such testimony;

c. Whether the defendant has a copy of such testimony;

d. Whether the defendant will voluntarily produce a copy of such 

testimony.

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Response to Interrogatory No. 63:

No.

200. Interrogatory No. 81 of the Chernick Interrogatories directly asked 

BASF’s predecessor, Engelhard, about the destruction of pertinent documents.

Engelhard’s answer under oath to this question reads:

Interrogatory No. 81:

Have you destroyed any documents, records or writings pertaining to:

a. Health hazards of asbestos;

b. Workmen's Compensation claims arising out of asbestos, lung 

cancer, mesothelioma, cor pulmonale, pneumoconiosis, or pulmonary 

fibrosis;

c. Placing warning labels on your products;

d. Hazardous conditions in your plants or factories;

e. Funding of studies about health hazards of asbestos;

f. Lawsuits arising out of Injuries alleged to have been caused by 

asbestos. 

If so, list every such document destroyed by author, date and subject.

Response to Interrogatory No. 81:

No, so far as Engelhard is able to ascertain - with the possible exception of 

any documents that might have been routinely destroyed as part of 

Engelhard's record retention policy. 

201. Mr. Mark’s April 15, 2002 letter requesting voluntary dismissal of the 

Chernick case and Engelhard’s subsequent and related April 16, 2002 answers to the 

Chernick Interrogatories were false, fraudulent and misleading to one reading and 

reasonably relying on them regarding BASF’s predecessor’s liability, such as Plaintiff 

Chernick’s counsel, Early, Lucarelli, Sweeney & Strauss. At no time did these documents 

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timely and fairly reveal or disclose to the Chernick plaintiffs’ counsel, and through same, 

Plaintiff Chernock, that evidence existed that was contrary to that which was represented 

in the letter, in the Responses to Interrogatories and/or contained or referred to in the 

supplied Ashton Affidavit, Poole Report and the other report mentioned in the 

documents, such as the inculpatory documents and deposition testimony that had been 

obtained by the plaintiff in the Westfall case. Without disclosure of such information, the 

affidavit and reports were materially misleading. There was also not any mention or 

reference in any of these documents or answers to interrogatories to the fact of and the 

circumstances surrounding BASF’s gathering and spoliation of all contrary and 

inculpatory asbestos claim evidence relating to Engelhard’s talc in 1984 following the 

settlement of the Westfall case. These misrepresentations and material omissions 

occurred and were committed despite the fact that the BASF Perpetrators and the Lawyer 

Perpetrators were aware of these facts, knew and appreciated the relevance of the subject 

information to asbestos claimants, and were under a duty to truthfully and fairly answer 

and provide discovery to adverse parties in litigation, as well the N.Y. Judiciary Law 

§487 duty imposed upon Cahill Gordon and other lawyers representing BASF and its 

predecessors in connection with the Chernick case, including BASF’s in-house counsel.

202. Subsequently, BASF's predecessor moved for summary judgment in the 

New York Supreme Court asking the Court to dismiss it from the Chernick case. Relying 

on the forgoing letter, attachments and Responses to Interrogatories, Chernick's counsel 

concluded, as it was the BASF and Lawyer Perpetrators intent he do, that there was no 

evidence or basis to continue the claim against Englehard and oppose the Motion for 

Summary Judgment. Plaintiff Chernick was so informed of her attorney's conclusion that 

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Engelhard’s talc did not contain asbestos and relying on that information consented to her 

attorney voluntarily executing and providing to BASF's predecessors' counsel for filing a 

consent "No Opposition Summary Judgment Motion Order," by which he, on behalf of 

her and her husband, agreed to the presiding court granting a summary judgment 

dismissal of the Chernick case's claims as to the Engelhard Defendants. Had Plaintiff 

Chernick’s counsel known about the spoliation of evidence and/or the truth about the 

presence of asbestos in Engelhard's talc and talc products, they would not have asked for 

and obtained her consent to execute the consent without their clients first receiving from 

BASF’s predecessors full, fair and just compensation for their respective asbestos injury 

claims. Had Plaintiff Chernick’s been informed about the spoliation of evidence and/or 

the truth about the presence of asbestos in Engelhard's talc and talc products, she would 

not have given same without their clients first receiving from BASF’s predecessors full, 

fair and just compensation, and consequently her attorneys would not have executed and

sent back the requested consent order dismissing BASF or its predecessors from her law 

suit. Had the true facts been known, her husband’s and her case would have obtained a 

substantial settlement from BASF or went to trial against same. 

203. On or about December 22, 2010, Mr. Mark, BASF’s local New York City 

counsel, sent an e-mail to Chernick’s counsel asking them to execute another consent No 

Opposition Summary Judgment Motion Order which was attached to the email. The email explained that an earlier No Opposition Summary Judgment Motion Order had not, 

according to BASF’s counsel, been timely filed in accordance with New York State’s 

civil procedure rules. On or about December 23, 2010, the Chernick plaintiffs’ counsel’s 

office by e-mail acknowledged that the consent order would be given to the attorney 

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handling the matter. The requested order was in course executed by Chernick plaintiffs’ 

counsel and returned by mail or e-mail to BASF’s local counsel’s office. When asking 

for the consent order, BASF’s counsel did not correct any of the previous 

misrepresentations or material omissions it had made to the Chernick plaintiffs’ counsel 

as set forth above. BASF’s counsel also failed to disclose or reveal on December 22, 

2010, that there was evidence that Engelhard’s talc contained asbestos and/or that 

evidence relating to same had been spoliated by BASF as set forth above. Had this been 

revealed or disclosed on December 22, 2010, Chernick’s counsel would have not 

executed and sent back the requested consent order and would have rescinded his prior 

agreement to consent to the dismissal of BASF or its predecessors. On or about January 

18, 2011, BASF’s counsel filed the fraudulently obtained consent order with the Supreme 

Court of New York City. The No Opposition Summary Judgment Motion Order was 

then in due course signed by New York Supreme Court Justice Sherry Klein Heitler and 

then filed with the New York Supreme Court Clerk on February 3, 2011. A copy of the 

e-mails requesting the December 22, 2010 Consent Order, acknowledging receipt of the 

request, and acknowledging receipt back of the signed Consent are jointly appended as 

Exhibit 24 and incorporated herein by reference. A copy of the referenced December 22, 

2010 Consent Order as filed with the Clerk of Court on February 3, 2011, is appended as 

Exhibit 25 and incorporated herein by reference.

e. Cahill Gordon’s and BASF’s Continuing Fraudulent and 

Misleading Representations to the Representative Plaintiffs’

Attorneys, Bevan & Economus and Bevan & Associates LPA, 

Inc., Beginning in 1992.

204. Representative Plaintiffs Williams, Pease, Holley, Ware, Wengerd and/or 

their respective decedents as the case may be, were all represented in asbestos injury 

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claims by the Northern Ohio law firm of Bevan & Economus or Bevan & Associates 

LPA, Inc. (collectively referred to as “Bevan Law Firm”). These plaintiffs — and 

where and when applicable their respective decedents — each asserted asbestos injury 

claims against BASF’s predecessors in Northern Ohio federal or state court law suits as 

set forth above. 

205. On or about April 23, 1992, Washington D.C. based Cahill Gordon 

attorney Scott A. Martin, Esq., sent the Bevan Law Firm a letter (Exhibit 19) and several 

enclosures (discussed below) on behalf of BASF. The letter and enclosures concerned 

three (3) then pending Northern Ohio asbestos cases the Bevan Law Firm was handling

that Cahill Gordon referred to as “Cuyahoga County Tireworker Actions.” Among the 

three Cuyahoga County Tireworker Actions identified in Cahill Gordon’s letter was 

Plaintiff Williams’ and her late husband’s asbestos injury case. 

206. Cahill Gordon’s April 23, 1992 letter and enclosures were sent to the 

Bevan Law Firm by Federal Express. The letter states Cahill Gordon’s New York based 

partners Joslyn and Defendant Sloane were blind copy recipients. Presumably their 

copies were sent to them at their New York office via U.S. Mail in view of the absence of 

any stated indication to the contrary in the letter. 

207. Cahill Gordon’s purpose in sending the April 23, 1992 letter and 

enclosures to the Bevan Law Firm, according to the letter’s tenor, was to request the 

Bevan Law Firm to voluntarily dismiss Engelhard as a defendant in the three (3) 

Cuyahoga County Tireworker Actions “on the basis that the talc produced by EmTal [sic] 

contained no asbestos.”

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208. The April 23, 1992 letter’s representations that Engelhard’s talc did not 

contain asbestos and the request for voluntary dismissal of BASF’s predecessors were 

supported with copies of the Ashton Affidavit, the Pooley Report and several Carter 

Affidavits. 

209. With respect to the Ashton Affidavit provided to the Bevan Law Firm in 

Cahill Gordon’s April 23, 1992 letter, Cahill Gordon through Mr. Martin stated and 

represented in pertinent part: 

...The Affidavit of William H. Ashton summarizes numerous 

investigations, examinations, and studies of the Johnson mine. The 

conclusion derived from all these studies is that the talc produced from this 

mine did not contain asbestos.... 

210. As further reason and support for its request that the Bevan Law Firm 

voluntarily dismiss BASF’s predecessors from asbestos injury claim, Cahill Gordon 

represented that the Pennsylvania Tireworkers Asbestos Claimants, as well as tireworker 

cases in the District of Kansas and Michigan State Court, were dismissed by their 

respective counsel after being provided the “Ashton materials.” 

211. On or about May 18, 1992, Cahill Gordon’s Attorney Martin wrote the 

Bevan Law Firm again after it had filed a fourth asbestos injury suit, Gonzalez v. Abex 

Corp., et al., naming Engelhard as a defendant. A copy of Cahill Gordon’s May 18, 1992 

letter is appended as Exhibit 26 and incorporated herein by reference.

212. Cahill Gordon’s May 18, 1992 letter, which was sent via Federal Express, 

represented to the Bevan Law Firm again that the various documents sent to it the 

previous month demonstrated “that the talc produced by Emtal [sic] from its sole mine 

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and mill in Johnson, Vermont contained no asbestos.” Cahill Gordon’s letter then again 

requested that Engelhard be promptly dismissed from the Cuyahoga County Tireworker 

Actions voluntarily because “under the circumstances there appears to be no basis in fact 

for maintaining Engelhard as a Defendant.” 

213. On or about December 22, 1992, Cahill Gordon’s Attorney Martin 

telephoned attorney Dale Economus, Esq., a principal of the Bevan Law Firm, to discuss 

BASF’s predecessor’s requests that it be voluntarily dismissed from what was then five 

(5) pending tireworker asbestos injury cases that Mr. Economus’ law firm had filed in 

Cuyahoga County against Engelhard. During the telephone conversation, Attorney

Martin obtained Mr. Economus’ agreement to respond to Cahill Gordon’s request for 

dismissal of Engelhard in the five cases by December 31, 1992 because an answer to the 

complaint in one of the five cases was at the time almost due. 

214. Subsequently, by letter on or about December 21, 1992, Cahill Gordon’s 

Attorney Martin wrote once more to Mr. Economus, this time to confirm their 

conversation. This correspondence was both telefaxed and sent by U.S. Mail to the 

Bevan Law Firm by Cahill Gordon’s Washington, D.C. office. A copy of Cahill 

Gordon’s December 21, 1992 letter is appended as Exhibit 27 and incorporated herein by 

reference. 

215. In his December 21, 1992 letter, Attorney Martin once again renewed and

supported Cahill Gordon and BASF’s predecessors’ request for a voluntarily dismissal of 

the claims against Engelhard and Eastern Magnesia on the basis and representation that 

Engelhard/Eastern Magnesia’s talc did not contain any asbestos, stating:

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Engelhard was named in these cases solely because its former subsidiary, 

Eastern Magnesia Talc Company ("EMTal") allegedly sold talc to plaintiffs' 

employers. As demonstrated in the various affidavits and other documents 

forwarded to you with my previous correspondence, talc produced by 

EMTal from its sole mine and mill in Johnson, Vermont contained no 

asbestos. The alleged diagnosis of the plaintiff in each of the actions in 

which Engelhard is named as a defendant is an asbestos-related disease, 

which cannot be attributed to EMTal talc. 

(emphasis in original).

216. On or about February 4, 1993, Cahill Gordon’s Mr. Martin sent the Bevan 

Law Firm another letter regarding dismissal of the five Cuyahoga County Tireworker

Action cases. A copy of this letter is appended as Exhibit 28 and incorporated by 

reference. This letter begins with a memoralization of the Bevan Law Firm’s request to 

Cahill Gordon the prior month (in or about January 1993) that Cahill Gordon draft and 

send notices of dismissal for the five asbestos actions referenced in Cahill Gordon’s 

April, May and December 1992 letters. According to the February 4, 1993 letter, the 

Bevan Law Firm was agreeing to sign and file the voluntary dismissals in the five cases 

“on the basis of [Cahill Gordon’s] correspondence demonstrating” that Talc produced by 

Engelhard’s former subsidiary, Eastern Magnesia Talc Company (“EMTal”), contained 

no asbestos. 

217. The Bevan Law Firm responded to Cahill Gordon’s February 4, 1993 

letter in a letter dated February 11, 1993 that was sent to Attorney Martin at his 

Washington D.C. office address by regular mail. In this letter, the Bevan Law Firm 

advised Cahill Gordon that it was reconsidering its decision to dismiss Engelhard based 

on its recent uncovering of some correspondence dating to 1950 from the State of 

Vermont Department of Health that purportedly discussed the propensity of employees at 

Eastern Magnesia Talc Company to develop pneumoconiosis and further referenced 

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therein future employee x-rays and an anticipated publication. The Bevan Law Firm 

invited Cahill Gordon’s comments on this information, as well as an opportunity to 

review the results of any studies on the Waterbury and Johnson employees and any 

publication mentioned in the 1950 Vermont Department of Health correspondence. The 

Bevan Law Firm’s letter also requested invoices or purchase orders indicating the years 

and volumes of talc sold to the Goodyear, Goodrich and Goodyear Aerospace plants in 

Akron. A copy of the February 11, 1993 letter is appended at Exhibit 29 and 

incorporated herein by reference.

218. On or about February 22, 1993, Cahill Gordon’s Martin responded to the 

Bevan Law Firm’s letter, which, according to the letter, was transmitted to the Bevan 

Law Firm by means of both telefax and certified U.S. Mail. A copy of this letter is 

appended as Exhibit 30 and incorporated herein by reference. 

219. In Cahill Gordon’s February 22, 1993 letter, Attorney Martin states that 

the 1950 Vermont Health Department correspondence the Bevan Law Firm inquired 

about “should in no way alter your previous expressed decision to dismiss Engelhard 

from these cases.” Cahill Gordon’s letter then proceeds to distinguish and deflect the 

information contained in the subject 1950 Vermont Health Department correspondence 

by explaining that the 1950 letter referenced workers who were not employed at 

Engelhard’s subsidiary’s Johnson Mine, but rather were workers employed at some other 

company’s mine. Cahill Gordon’s letter then returned to and reiterated once more 

BASF’s purported uncontradicted exculpatory evidence and information that Cahill 

Gordon had provided the Bevan Firm previously in furtherance of the Fraudulent 

Asbestos Defense Scheme, stating:

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Beginning with my first request for dismissal last April I sent your firm 

voluminous materials concerning the Johnson mine. In reaching your 

decision to dismiss Engelhard, your firm reviewed, inter alia, the Affidavit 

of William H. Ashton, which summarizes numerous investigations 

examinations and studies of the Johnson mine. The conclusions derived 

from all of these studies is that talc produced from this mine did not contain 

asbestos. The only analysis which we have not previously forwarded to you 

is one just completed by the R.J. Lee Group which showed no evidence of 

asbestos minerals nor of their non-fibrous analogs, and found the talc to be 

a platy, non fibrous variety. 

(emphasis in the original).

220. Shortly after receipt of Cahill Gordon’s February 22, 1993 letter, and 

reasonably relying upon Cahill Gordon’s representations and supporting materials 

supplied by it in the various correspondence and communications referred to above, the 

Bevan Law Firm proceeded to recommend to its asbestos injury clients that Engelhard be 

voluntarily dismissed from their claims. Included in those to whom this recommendation 

was made was Plaintiff Williams. Based upon the Bevan Law Firm’s recommendations 

and advice, which in turn were based upon the documents and representations made by 

and on behalf of the defendants that BASF’s talc and talc products contained no asbestos, 

the Bevan Law Firm’s clients in the five Cuyahoga County Tireworker Action cases, 

including Plaintiff Williams and her late husband, each consented and authorized the 

Bevan Law Firm to voluntarily dismiss their asbestos injury claims against BASF’s 

predecessors. 

221. In or about late February or March, 1993, the Bevan Law Firm, acting and 

relying upon Cahill Gordon’s representations and supplied materials as set out above, 

filed Notices of Voluntary Dismissal dismissing its clients’ asbestos injury claims against 

BASF’s Predecessors in the five Cuyahoga County Tireworker Actions as Cahill Gordon 

requested. A copy of the Notice of Dismissal that voluntarily dismissed Plaintiff 

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Williams and her late husband’s asbestos case against only BASF’s predecessor, which 

was entered as an order of the Court on or about March 23, 1993 by the Honorable 

Charles R. Weiner, the presiding federal court Multi-District asbestos litigation judge, is 

appended as Exhibit 31 and incorporated herein by reference. Copies of the dismissals of 

the four other Cuyahoga County Tireworker Action cases are also collectively appended 

as Exhibit 31 and incorporated herein by reference. All five dismissal notices were 

transmitted to the respective courts and served on defense counsel by regular U.S. Mail. 

222. At no time in any of the aforementioned Cahill Gordon communications 

or correspondence with or to the Bevan Law Firm during 1992 and 1993, or in any of the 

affidavits or reports supplied or referred to in Cahill Gordon’s communications or letters 

seeking the voluntary dismissal of Engelhard from the Cuyahoga County Tireworker 

Action cases, was the Bevan Law Firm, and through this law firm, the Bevan Law Firm 

asbestos injury clients, including Plaintiff Williams and her late husband, ever fairly (or 

otherwise) informed by the Lawyer Perpetrators or the BASF Perpetrators that evidence 

existed that was contrary to that represented in Cahill Gordon’s letters and in the supplied 

Ashton Affidavit, Poole Report, Carter Affidavits or any of other material provided by 

Cahill Gordon, such as the inculpatory documents and deposition testimony that had been 

obtained by the plaintiff in the Westfall case. There additionally was no mention or 

reference in the any of Cahill Gordon’s communications or correspondence to the Bevan 

Law Firm, or in any of the affidavits or reports Cahill Gordon supplied to the Bevan Law 

Firm, to the fact of and the circumstances surrounding BASF’s gathering and spoliation 

of all contrary and inculpating asbestos injury claim evidence relating to Engelhard’s talc 

in 1984. These misrepresentations and material omissions occurred and were committed 

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despite the fact that the BASF Perpetrators and the Lawyer Perpetrators were aware of 

these facts, knew and appreciated the relevance of the subject information to asbestos 

claimants, and were under a duty to truthfully and fairly answer and provide information 

and discovery to adverse parties in litigation.

223. Had the BASF Perpetrators or the Lawyer Perpetrators fully, fairly and 

timely disclosed the truth about its talc products’ asbestos content, the existence of 

inculpatory and contradictory evidence regarding the existence of asbestos in Engelhard’s 

talc, such as that which had been developed in the Westfall case, and/or the facts and the 

circumstances surrounding BASF’s gathering and spoliation of contrary and inculpating

asbestos claim evidence relating to Engelhard’s talc to the Bevan Law Firm, the Bevan 

law firm then would not have recommended to its clients, including Plaintiff Williams 

and her late husband, that they voluntarily dismiss their asbestos claim against BASF’s 

predecessors without first receiving from BASF’s predecessor payment of full, fair and 

just compensation. Correspondingly, the Bevan Law Firm’s asbestos injury clients, 

including Ms. Williams and her husband, as well as others similarly situated to them, 

would not have given their consent or authorization to voluntarily dismiss their asbestos 

claims against BASF’s predecessor without first receiving from BASF’s predecessors 

full, fair and just compensation for their respective asbestos injury claims.

224. During and throughout the 1990s and continuing into and throughout the 

2000s, the Bevan Law Firm also represented thousands of other tireworker and industrial 

worker clients who were exposed to hazardous workplace dusts and fibrous materials 

during and at their employment that caused them to develop asbestos and/or other 

occupational pulmonary diseases and disorders, such as mesothelioma, asbestos induced 

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cancers, asbestosis, pneumoconiosis and pulmonary talcosis. When and where such 

clients (or their decedents) were diagnosed with an asbestos and/or industrial dust related 

exposure and a lawsuit was commenced, Engelhard, Eastern Magnesia and, eventually, 

BASF were named in such suits as a co-defendant along with other parties in accordance 

with the accepted asbestos practice in the Northern Ohio area in view of settlement 

programs that potentially responsible product manufacturers or suppliers were 

negotiating or had developed. Among these asbestos injury clients were Plaintiffs 

Williams, Pease, Holley, Ware, Wengerd and/or their respective decedents. 

225. In connection with the lawsuits filed by the Bevan Law Firm during the 

1990s through the 2000s, BASF and its predecessors periodically responded under oath 

to written discovery relating to Engelhard’s talc products. Cahill Gordon either directly 

or indirectly through local Ohio counsel prepared the responses to this written discovery 

on behalf of BASF or its predecessors. In BASF or its predecessors’ responses to written 

discovery that Cahill Gordon prepared and/or reviewed prior to BASF verifying and 

serving, BASF or its predecessors continued to uniformly and consistently represent to 

the Bevan Law Firm, and through that firm its clients, including Plaintiffs Williams, 

Pease, Holley, Ware, Wengerd and/or their respective decedents, that Engelhard’s talc 

did not contain any asbestos and/or there was no evidence to the contrary. Representative 

of such written discovery responses are BASF’s and its predecessors 1991 responses to 

the discovery in the Summit County, Ohio Clark case (Exhibit 22) referred to and 

discussed above, and October 19, 2007, in Answers to Interrogatories in “Bevan Group 

14” cases that were electronically filed and served by BASF local counsel via the Internet 

through the LexisNexis File & Serve system (“2007 Bevan Group 14 Interrogatories”). 

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A copy of the 2007 Bevan Group 14 Interrogatories is appended as Exhibit 32 and 

incorporated herein by reference. 

226. In response to Interrogatory No. 5 of the 2007 Bevan Group 14 

Interrogatories, an answer that is thereafter referred to in response to numerous 

subsequent questions, BASF states under oath:

EVER SELL ASBESTOS

5. Has Defendant ever engaged in the mining, manufacturing, selling, 

marketing, installation or distribution of asbestos-containing products 

(including equipment of any kind containing asbestos in any form)? If so, 

please state the following:

(a) The name of the company engaged in the activity (whether it is 

Defendant, Defendant's predecessor, or Defendant's subsidiary);

(b) As to each product mined, manufactured, sold, marketed, installed or 

distributed, please state the following:

1. The trade or brand name.

2. Its identification number (model, serial number, etc.).

3. The time period it was manufactured, mined, marketed, 

distributed or sold.

4. Its physical description including color, general composition, and 

form.

5. A detailed description of its intended use and purpose.

6. A detailed description of the type package in which it was sold, 

listing the dates of each type of package used, a physical description 

of the package, and a description of any printed material or 

trademarks that appeared thereon.

7. The percent of asbestos which it contained.

8. The percent of asbestos by asbestos type (amosite, crocidolite, 

tremolite, anthophyllite).

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(c) The time period during which each of these products were on the market;

(d) The material components/ingredients of each such product, giving 

specific or approximate percentage both by weight and by volume of each 

material component/ingredient (this interrogatory is not limited to the 

asbestos component of the product but seeks information as to the nature, 

weight and volume of non-asbestos ingredients, as well) of each such 

product;

(e) How each of these asbestos-containing product [sic] can be 

distinguished from those of competitors;

(f) A description of the physical appearance of such product;

(g) A detailed description of the intended uses.

ANSWER: No.

227. Following the dismissal of the Cuyahoga County Tireworker Action cases 

in early 1993, during and throughout the ensuing mid-1990s and continuing throughout 

the 2000s, a number of periodic aggregate settlements occurred by and between several 

talc suppliers and manufacturers and Bevan Law Firm clients. From time to time BASF 

and its predecessors participated in these talc company aggregate settlements when doing 

so enabled it or them to cheaply settle and obtain releases of liability from thousands of 

the Bevan Law Firm’s asbestos injury claimants. Among the thousands of asbestos injury 

claims so settled in this manner were Plaintiff Pease’s (whose lawsuit against Engelhard 

was voluntarily dismissed in or about December 1998 (Exhibit 33)), Plaintiff’s Holley’s

decedent’s, Ms. Darnell, (whose lawsuit against Engelhard was voluntarily dismissed in 

or about May 2001 (Exhibit 34)) and Plaintiff Ware’s and her husband’s (whose lawsuit, 

together with slightly under 2,200 other Cuyahoga County, Ohio Court of Common Pleas 

lawsuits, was voluntarily dismissed in or about April 2003 (Exhibit 35)). Exhibits 33, 34, 

and 35 are hereby incorporated by reference. The dismissals were all filed with the 

Cuyahoga Court of Common Pleas and served on the parties to the suit electronically. 

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228. When negotiating these aggregate settlements and deciding to recommend 

and obtain its clients’ consent and authorization to participate in them, the Bevan Law 

Firm reasonably relied and acted upon Cahill Gordon’s and BASF’s (or its predecessors’) 

representations and the materials provided to it by Cahill Gordon and BASF from 1992 

forward that purported to show Engelhard’s talc did not contain asbestos and/or that there 

was absolutely no evidence to the contrary as set out above. 

229. In turn, Plaintiff Pease, Plaintiff Holley’s decedent, Ms. Darnell, and 

Plaintiff Ware, as well as others similarly situated, reasonably relied and acted upon 

Cahill Gordon’s and BASF’s (or its predecessors’) representations and materials provided 

by Cahill Gordon and BASF that Engelhard’s talc did not contain asbestos and/or that 

there was absolutely no evidence to the contrary which had been made or supplied to the 

Bevan Law Firm from 1992 forward, as set out above.

230. Had the BASF Perpetrators or the Lawyer Perpetrators fully, fairly, 

honestly and timely disclosed to the Bevan Law Firm the truth about Engelhard’s talc 

products’ asbestos content, the existence of inculpatory and contradictory evidence 

regarding the existence of asbestos in Engelhard’s talc, such as that which had been 

developed in the Westfall case, and/or the facts and the circumstances surrounding 

BASF’s gathering and spoliation of contrary and inculpatory asbestos claim evidence 

relating to Engelhard’s talc in 1984 as was their duty, the Bevan law firm would not have 

negotiated and agreed to the terms of the aggregate settlements with BASF or its 

predecessors on the terms that were offered, and, further, it would not have recommended 

to its clients that they agree to participate in such aggregate settlements with Engelhard 

and dismiss their cases against it voluntarily as they did. Correspondingly, the Bevan 

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Law Firm’s asbestos injury clients, including Plaintiff Pease, Plaintiff Holley’s decedent, 

Ms. Darnell, and Plaintiff Ware, as well as others similarly situated to them, would not 

have given their consent or authorization to participate in an aggregate settlement with 

BASF or its predecessor on the basis of the terms of the agreement nor authorized and 

consented to the Bevan Law Firm voluntarily dismissing their asbestos claims against 

BASF’s predecessor without first receiving from BASF’s predecessors full, fair and just 

compensation for their respective asbestos injury claims. In each case the settlement 

demand would have been higher and/or they would have taken their respective case to 

trial. 

231. As a direct result of the Fraudulent Asbestos Defense Scheme, Plaintiff 

Pease, Plaintiff Holley’s decedent, Ms. Darnell, and Plaintiff Ware, as well as others 

similarly situated to them, have not received full, fair and just compensation from 

BASF’s predecessors for their respective asbestos injury claims, to their detriment and 

loss. 

232. On or about November 12, 2008, BASF’s Northern Ohio area local 

defense attorney, Jennifer A. Reister, Esq., mailed a letter with enclosures to the Bevan 

Law Firm requesting voluntary dismissal of two of the firm’s then pending asbestos 

injury matters it had filed in the Cuyahoga County, Ohio, Court of Common Pleas, 

namely: Plaintiff Wengerd’s decedent’s law suit, Jennifer Graham v. Eastern Magnesia 

Talc, and Russell Young v. Eastern Magnesia Talc. Prompting the letter was the Bevan 

Law Firm’s service of discovery requests on BASF in connection with the two cases. A 

copy of this letter is appended as Exhibit 36 and incorporated herein by reference. 

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233. Ms. Reister’s November 12, 2008 letter requested the Bevan Law Firm to 

“voluntarily dismiss Eastern Magnesia Talc and, in the Young case, both Eastern 

Magnesia Talc and Engelhard Corporation, from these cases on the basis that talc 

produced by EmTal contained no asbestos.”

234. In support of both her request for voluntary dismissal and her 

representation that Engelhard’s talc “contained no asbestos,” Ms. Reister provided the 

Bevan Law Firm again with copies of the Ashton Affidavit and Pooley Report, along 

with other purported analyses that allegedly state or indicate that talc from Engelhard’s 

Johnson talc mine did not contain asbestos. The letter and enclosures were further 

intended, according to the letter, to serve as BASF’s responses to the Bevan Law Firm’s 

discovery initiatives in the two cases

235. To further bolster her request for voluntary dismissals of the two cases 

Ms. Reister’s letter noted to the Bevan Law Firm that Engelhard and Emtal had been 

named as Defendants and subsequently dismissed voluntarily in 567 asbestos claims as a 

result of the enclosed materials in various jurisdictions including four (4) plaintiffs in 

Arkansas, 191 plaintiffs in Kansas, forty (40) plaintiffs in Michigan, thirty-one (31) 

plaintiffs in Mississippi, over 300 plaintiffs in Pennsylvania, and one (1) plaintiff in 

Florida.

236. According to BASF’s court ordered answers to Question No. 4 of a set 

interrogatories served on it in the Paduano suit, Cahill Gordon supplied Ms. Reister with 

the information and documents she used in writing and sending her November 2, 2008 

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letter and enclosures to the Bevan Law Firm. A copy of these interrogatory answers is 

appended as Exhibit 37 and incorporated herein by reference.

237. Just as in the Cahill Gordon correspondence and interrogatory answers set 

out above, Ms. Reister’s November 12, 2008 letter and enclosures on behalf of BASF did 

not fairly, candidly and truthfully inform the Bevan Law Firm, and through this law firm, 

its asbestos injury clients, including Plaintiff Wengerd and/or her decedent, Mrs. Graham, 

that evidence existed that was contrary to that which was represented in Ms. Reister’s 

letter and in the supplied Ashton Affidavit, Poole Report and/or other materials provided 

by her and Cahill Gordon, such as the inculpatory documents and deposition testimony 

that had been obtained by the plaintiff in the Westfall case. Neither was there any 

mention or reference in Ms. Reister’s correspondence to the Bevan Law Firm, nor in any 

of the affidavits or reports that she and Cahill Gordon supplied to the Bevan Law Firm, to 

the fact of and the circumstances surrounding BASF’s gathering and spoliation of all 

contrary and inculpatory asbestos claim evidence relating to Engelhard’s talc in 1984.

These misrepresentations and material omissions occurred and were committed despite 

the fact that the BASF Perpetrators and the Lawyer Perpetrators were aware of these 

facts, knew and appreciated the relevance of the subject information to asbestos 

claimants, and were under a duty to truthfully and fairly answer and provide discovery to 

adverse parties in litigation.

238. Neither BASF nor Cahill Gordon took any steps or measures to correct 

Ms. Reister’s misrepresentations. BASF also did not take any steps or measures to 

prevent Ms. Reister (or any other counsel representing it) from making such 

misrepresentations and material omissions in the future.

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239. When Plaintiff Wengerd in her capacity as personal representative of her 

mother’s estate (Mrs. Graham having died on July 8, 2008) did not voluntary dismiss 

BASF from her mother’s asbestos injury case as requested by Ms. Reister in her 

November 12, 2008 letter, Ms. Reister and her firm thereafter filed a Motion for 

Summary Judgment seeking its involuntary dismissal. Asking the Cuyahoga County 

Court of Common Pleas to dismiss this case, BASF claimed to the court that there was no 

proof that its predecessor Engelhard’s talc was present in Ms. Graham’s workplace at the 

Goodyear tire and rubber plant she was employed in, and, in any event, there was no 

evidence that Engelhard’s talc contained asbestos. 

240. The Bevan Firm in or about early 2009 opposed BASF’s motion for 

Summary Judgment in the Graham case by establishing that there was an outstanding 

question of fact on Ms. Graham’s exposure to Engelhard talc at the Goodyear plant in 

which she worked. It was not able, however, due to the Lawyer Perpetrators and the 

BASF Perpetrator’s misrepresentations and material omissions set forth above, to mount 

any opposition to BASF’s claim and representations to the presiding court that there was 

not any evidence Engelhard’s talc contained asbestos. Thus in a reply brief on behalf of 

BASF that Ms. Reister electronically filed via the File and Serve System in February, 

2009, it was stated to the Cuyahoga Court of Common Pleas:

Lastly, plaintiff attempts to rely on her own answers to interrogatories. In 

her answers, she states that one of the asbestos containing products she was 

exposed to at Goodyear was talc. She does not identify EMT as the seller of 

the talc. Additionally, plaintiff has provided no evidence that EMT’s talc is 

an asbestos-containing product. On the other hand, EMT filed numerous 

materials in response to plaintiff's discovery request that indicate that the 

talc mined by EMT was asbestos-free. (See Letter and to John Mismas and 

attachments filed November 12, 2008) These materials included:

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1) A copy of an Affidavit prepared by William H. Ashton dated May 

8, 1989, with attached Exhibits A through G;

2) A copy of a report prepared by Dr. F.D. Pooley concerning an 

examination of talc samples taken from EMT’s Johnson, Vermont 

mine;

3) A copy of a 1977 NIOSH study entitled “Analysis of Talc By XRay 

Diffraction and Polarized Light Microscopy”; and

4) A copy of a letter from RJ Lee Group, Inc. dated January 27, 1993 

reporting the results of their analysis of a sample of EMT talc.

It is elementary that plaintiff must show that she was exposed to an asbestoscontaining product to survive summary judgment. In this case, plaintiff has 

failed to produce any evidence that either she was exposed to any talc sold 

by EMT or that the talc sold by EMT contained asbestos. 

(emphasis added).

A copy of this reply is appended as Exhibit 38 and incorporated herein by reference.

241. In the Motion for Summary Judgment filed on behalf of BASF in the 

Graham case, BASF Perpetrators and/or the Lawyer Perpetrators, acting as aforesaid (who 

were directing and controlling Ms. Reister’s actions on BASF’s behalf), failed to fairly, 

honestly and candidly inform the presiding court that evidence that BASF’s talc contained 

asbestos existed and/or that there was contrary evidence to that which was represented in 

the motion, i.e. - BASF’s reference to Ms. Reister’s November 12, 2008 letter and 

attachments submitted to the court in connection with the motion, such as the inculpatory

documents and deposition testimony that had been obtained by the plaintiff in the Westfall

case. Neither was there any mention or reference in Ms. Reister’s Motion for Summary 

Judgment on behalf of BASF, nor in any of the corroborating affidavits or corroborating 

reports that she filed in support of the motion, to the fact of and the circumstances 

surrounding BASF’s gathering and spoliation of all contrary and inculpatory asbestos claim 

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evidence relating to Engelhard’s talc. These misrepresentations and material omissions 

occurred and were committed despite the fact that the BASF Perpetrators and the Lawyer 

Perpetrators were aware of these facts, knew and appreciated the relevance of the subject 

information to asbestos claimants, were under a duty to truthfully and fairly answer and 

provide discovery to adverse parties in litigation, and were under a duty of candor to the 

presiding court. 

242. As the direct and proximate result of the BASF Perpetrators and the 

Lawyer Perpetrators misrepresentations and material omissions as set forth above, on 

June 18, 2009, the Cuyahoga County Court of Common Pleas granted BASF’s motion for 

summary judgment and dismissed Ms. Graham’s case as to BASF, thereby depriving 

Plaintiff Wengerd’s deceased mother and her estate of their right to full, fair and just 

compensation from BASF on the subject asbestos injury claim. 

243. On or about May 15, 2009, a notice of voluntary dismissal of Engelhard, 

as well as three other defendants, was electronically filed in the lawsuit relating to Mr. 

Young’s asbestos injury through the electronic File and Serve System. A copy the 

dismissal is appended as Exhibit 39 and incorporated herein by reference. In agreeing to 

and obtaining its client’s consent to this dismissal, the Bevan Law Firm relied and acted 

upon the misrepresentations and material omissions set forth above. 

H. The Discovery and Uncovering of the Fraudulent Asbestos Defense 

Scheme

244. The longstanding Fraudulent Asbestos Defense Scheme started to unravel 

during a June 15, 2009 deposition of Mr. David Swanson, a former a BASF research and 

development employee, that was taken in connection with an asbestos injury case 

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captioned Paduano v. Ace Scientific Supply Co., captioned MID-L-2976-09 (N.J. Super. 

Ct.) (the “Swanson deposition”). A copy of Mr. Swenson’s deposition is attached as 

Exhibit 9, and incorporated herein by reference. 

245. Mr. Swanson was a chemist for Engelhard in Menlo Park, New Jersey. 

246. During his tenure at Engelhard, Swanson conducted experiments and 

assays with talc in his laboratory. He also visited the Johnson Mine. 

247. Mr. Swanson’s daughter, Donna Paduano, developed mesothelioma and 

contended the asbestos causing same was from, inter alia, BASF’s talc her father worked 

with or was exposed to at Engelhard, to which she came into contact. 

248. During his deposition Mr. Swanson testified:

a. He was aware that Emtal talc contained asbestos fibers based on his work 

for the company;

b. That Engelhard’s talc mine was shut down after it was determined that the 

talc contained asbestos;

c. That sometime after the BASF talc mine was shut down, he was given a 

directive by the head of Engelhard’s research and development department, 

Defendant Hemstock, to gather all of his lab notebooks and records regarding 

Engelhard’s talc; 

d. That Defendant Hemstock explained to him that the directive to gather up 

the documents had come from BASF’s legal department; 

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e. That he understood and believed that the materials gathered were to be 

shredded or destroyed; 

f. That he complied with the instructions and gathered his documents on 

Emtal talc, including his laboratory notebooks, and turned over all of his records as 

directed; 

g. That BASF’s legal department checked with all employees to ensure that 

all documents that revealed that the talc contained asbestos had been recovered and 

subsequently destroyed or secreted away; and

h. That he never saw his Emtal talc documents again. 

249. The Swanson Deposition testimony led to an investigation by the Paduano

suit’s plaintiffs’ counsel into whether BASF had spoliated material evidence (the 

“Paduano spoliation investigation”). 

250. The Paduano spoliation investigation ultimately led to the discovery of 

evidence that prompted and grounded a successful motion to amend before the New 

Jersey Superior Court to plead a New Jersey spoliation “Fraudulent Concealment” claim 

against BASF in the Paduano suit, along with three other pending New Jersey state court 

asbestos laws suits, based upon the spoliation of Emtal talc documents described herein. 

251. The Paduano spoliation investigation also eventually led to BASF 

producing documents relating to its 1984 gathering of documents relating to Emtal talc 

and portions of some, but not all, of the Westfall case’s depositions. 

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252. During the Paduano spoliation investigation plaintiffs’ counsel reviewed

thousands of pages of documents produced by BASF relating to its corporate knowledge 

of asbestos in Johnson Mine talc ore and Emtal talc products and what BASF and Cahill 

Gordon had produced and represented to asbestos claimants’ counsel over the years 

regarding same. Additionally, interrogatories were served and depositions of BASF 

designated representatives taken on topics relating to the spoliation of evidence and 

documents.

253. During the Paduano spoliation investigation BASF withheld numerous 

documents from its production that were responsive to the spoliation investigation on 

claims of attorney-client privilege. The Paduano plaintiffs challenged BASF’s 

withholding of documents based upon the “crime-fraud” exception to the attorney-client 

privilege. This dispute led to the appointment of retired New Jersey Superior Court 

Appellate Division Judge Jack L. Lintner (“Judge Lintner”) as Special Discovery 

Master in Paduano and three related asbestos cases. A copy of said order is appended as 

Exhibit 43 and incorporated herein by reference. 

254. Judge Lintner requested briefing from the Paduano parties on the 

applicability of the crime-fraud exception and following his review of same rendered an 

initial opinion in October, 2010 in which he determined that an in camera review of 

BASF’s withheld documents was warranted. On November 4, 2010, following his in 

camera review of the withheld documents, Judge Lintner advised the Paduano parties 

that he was going to report his opinion concerning which documents should be produced 

by BASF under New Jersey’s crime-fraud exception to the attorney-client privilege. 

Thereafter, on November 10, 2010, and with notice to all Paduano parties, Judge Lintner 

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provided BASF s counsel, and only it, with a copy of his tentative report setting forth his 

determinations in order to allow BASF’s counsel to review and make any objections it 

had to his recommendations as well as to production of his report to the Paduanos’ 

counsel. 

255. After Judge Lintner submitted his tentative report to BASF’s counsel, the 

Paduano case settled. Pursuant to the order of the court the tentative report is 

confidential. 

256. The terms of the Paduano settlement and the order appointing Judge 

Lintner require Judge Lintner and his law firm, Norris McLaughlin & Marcus, P.A., to 

hold both a copy of his tentative report and the withheld documents he reviewed in 

escrow for seven (7) years. 

257. Plaintiffs in support of their claims are seeking production of the 

documents held in escrow. 

258. The Paduano spoliation investigation led to the discovery of the 

following tests and assays of Emtal talc that found the presence of asbestos fibers in the 

Emtal talc:

a. A 1972 Royal Globe Insurance test which established four out of five 

Emtal talc samples contained asbestos fibers;

b. A May 1972 Johns Manville test which identified asbestos fibers, 

including tremolite fibers, in all of the Emtal samples; 

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c. A 1977 test by Mr. Triglia, an Engelhard employee, which identified the 

presence of asbestos in Emtal talc;

d. A 1978 test which established the presence of asbestos in all Emtal talc; 

e. A 1979 Georgia Tech electron microscope analysis test which found fibers 

in the Emtal talc.; and,

f. Three other 1979 tests which all confirmed the presence of asbestos in 

Emtal talc.

259. In the twenty five (25) years between the Westfall case settlement and the 

Swanson deposition, upon information and belief, none of the above referenced tests or 

the underlying data were ever produced to any asbestos injury claimant or their counsel 

even though they were often well within the scope of discovery requests made by 

asbestos claimants’ counsel. These tests and their underlying data were also not referred 

to in correspondence or defense reports sent to claimants’ counselor in court submissions 

that were filed seeking dismissal of BASF. These tests and data represent only a portion 

of the original evidence relating to the presence of asbestos in Emtal talc, and are an 

indication of the once-extensive evidence which Defendants possessed regarding the 

presence of asbestos in the Emtal talc. 

260. Based upon information and belief, BASF terminated Cahill Gordon as its 

national counsel in or about 2009 or 2010.

261. The documents produced during the Paduano spoliation investigation after 

Cahill Gordon was terminated, many of which are stamped by BASF’s counsel with the 

document management prefix “FC,” revealed the existence of the BCAD enterprise and 

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how the BASF Perpetrators and the Lawyer Perpetrators used it to repeatedly mislead and 

deceive asbestos injury claimants, their counsel and presiding courts. 

262. Many of the exhibits and test and assay results referred to in the 

depositions of Hemstock and Triglia still have not been produced to any asbestos injury 

claimant lawyer other than counsel in the Westfall case who was and is bound to a 

confidentiality agreement. 

a. The following exhibits from the Hemstock deposition are missing or have 

otherwise not been produced: Exhibits 1, 5, 13, 15, 16, 18, 19, 21, 22, 23, 24, 25, 29, 

30, 32, 34, 37, 39, 43, 44, 46, 47, 49, 50 (partially), and 51. 

b. The following exhibits from the Triglia deposition are missing or have 

otherwise not been produced: Exhibits 1, 2, 5, 6, 9, 11, 12, 13, 15, 16, 17, 18, 19, 20, 

23, 24, 26, 27, 28 and 30.

263. Many other presently unknown tests, studies, and other evidence which 

Defendants conducted, possessed, or had access to have been destroyed, secreted away 

and/or due to the passage of time caused by the BASF Perpetrators’ and the Lawyer 

Perpetrators’ spoliation and tortious conduct, are no longer accessible or recoverable.

264. The evidence spoliated by the BASF Perpetrators and the Lawyer 

Perpetrators includes Engelhard’s internal lab notebooks, many of which to date, and 

despite BASF’s search efforts after Paduano have never been located and/or produced 

and at this point and may be inferred or presumed to have been permanently destroyed.

Based upon information and belief, these lab notebooks would have contained testing and 

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assay data regarding the composition of the Emtal talc including but limited to the 

asbestos content of the Emtal talc.

265. Due to the spoliation of this evidence, asbestos victims, their counsel and 

courts across the country have been prevented from obtaining or receiving material 

evidence and accordingly may never know the full nature, extent and breadth of the 

asbestos fibers in BASF’s talc and talc products including Emtal talc.

I. The BASF Perpetrators Undeterred Attempt to Mislead and Deceive 

the Paduano Suit’s Plaintiffs’ Counsel Regarding Emtal Talc’s 

Asbestos Content

266. Less than six months after the Swanson deposition led to the discovery of 

the Fraudulent Asbestos Defense Scheme, Mr. Ernest Behm (“Behm”) was produced by 

BASF to testify in the Paduano suit as the corporate designee with the most knowledge 

concerning BASF-Engelhard’s historical knowledge of the dangers of asbestos at a 

deposition noticed and taken on November 6, 2009. (A copy of excerpts of Mr. Behm’s 

deposition transcript is appended as Exhibit 40).

267. During this deposition, Behm was asked specifically by Ms. Paduano’s

counsel to identify the location of documents related to the Westfall case which referred 

to asbestos containing talc sold by BASF-Engelhard. Mr. Behm testified that his search 

prior to his deposition disclosed no such documents. 

268. Six months after the Swanson deposition led to the uncovering BASF’s 

twenty-five year scheme of fraudulently denying the existence of evidence that its talc 

contained asbestos fiber, Mr. Behm, as the BASF representative most knowledgeable 

about the asbestos risks of its products, repeated the misrepresentations and material 

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omissions that were the modus operandi of the Fraudulent Asbestos Defense Scheme, 

stating: “[I]t is my understanding that Engelhard never sold any asbestos containing 

product. And when it comes to talc, I have materials which I had available to me which 

stated that talc does not contain asbestos.” (See Exhibit 40 at pg. 107).

269. BASF’s corporate designee’s continued misrepresentations under oath in 

November, 2009 demonstrate how ingrained and persistent the Fraudulent Asbestos 

Defense Scheme had become. Its designated representative continued to parrot the 

misrepresentations even in the face of an investigation that was beginning to unravel

BASF’s fraud and spoliation of evidence. 

J. BASF’s Admissions That False and Misleading Statements Were 

Given to Asbestos Claimants Over the Years as Part of BASF’s 

Asbestos Claim Defense

270. In connection with the Paduano suit, BASF designated and produced for 

deposition Ms. Ellen Poole as its representative with the most knowledge concerning the 

sale, supply and distribution of BASF-Engelhard’s talc to National Gypsum Facilities, as

well as its designee to testify on matters relating to the Paduano spoliation investigation. 

(A copy of excerpts of Ms. Poole’s deposition transcript is appended as Exhibit 41).

271. In her deposition on May 25, 2010, Ms. Poole admitted as a designee of 

BASF:

a. That there are documents which show the existence of asbestos in Emtal 

talc (See Exhibit 41 at pg. 185-190);

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b. That testing on Emtal talc performed throughout the 1970s showed the 

presence of asbestos fibers in BASF products (See Exhibit 41 at pg. 185-190);

c. That testing on Emtal talc conducted by Georgia Tech and by BASF were 

in agreement that the asbestos fiber count in Emtal talc varied from trace amounts to 

abundant (See Exhibit 41 at pg. 185-190);

d. That a geologist named “Gale”, who it is believed is referring to Peter 

Gale, a former Engelhard research and development employee who BASF sought to 

restrain from being retained as an expert by the Westfall case’s plaintiff, confirmed 

the existence of asbestos in Emtal talc in 1979 (See Exhibit 41 at pg. 252);

e. That sworn affidavits and statements made and frequently used in the 

Fraudulent Asbestos Defense Scheme, such as the Ashton Affidavit and Eastern 

Magnesia’s October 19, 2007 answers to interrogatories, which stated that BASF’s 

asbestos knowledge was irrelevant because it never sold asbestos containing products, 

are contradicted by tests and studies that were known to BASF (See Exhibit 41 at pg. 

252); and,

f. That Cahill Gordon had maintained the storage facility where some of the 

documents establishing the presence of asbestos fibers in the Emtal talc had been 

secretly held for the past twenty-five years. (Exhibit 42 at pg. 59).

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K. Plaintiffs Learn They and Other Asbestos Claimants Similarly 

Situated Were Victimized and Harmed by the Fraudulent Asbestos 

Defense Scheme

272. Plaintiffs first learned that they and others were the victims of the BASF 

and Lawyer Perpetrators’ Fraudulent Asbestos Defense Scheme, and the BCAD 

Enterprise’s role in executing it, in or about late 2010 or 2011 when they were first 

advised by their respective asbestos counsel of the foregoing alleged facts and 

circumstances which their asbestos claim counsel had learned of through being contacted 

by the counsel conducting the Paduano spoliation investigation as part of that 

investigation or the investigation of the instant suit. 

273. The existence and/or scope of the fraudulent concealment, the Fraudulent 

Asbestos Defense Scheme and BCAD Enterprise’s existence and corrupt activities was 

not known to Plaintiffs prior to that time, and, because of its covert nature, was not 

reasonably knowable to them until such time as they were first advised of its existence by 

their asbestos counsel. 

274. Due to the nature of the facts and circumstances concerning the Fraudulent 

Asbestos Defense Scheme and the BCAD Enterprise’s role in executing this scheme, 

such are reasonably not known or knowable to members of the Class and will not be 

unless and until they are notified of these circumstances, which is an element of relief 

sought in this class action.

275. Plaintiffs and others similarly situated to them have been harmed by the 

misrepresentations, omissions of material fact and deceitful conduct involved in the 

Fraudulent Asbestos Defense Scheme and the BCAD Enterprise’s role in executing it.

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276. As a direct and proximate result of Defendants’ acts, omissions and 

activities, Plaintiffs and members of the Class similarly situated sustained the loss of 

their property in the form of the termination or impairment of their asbestos injury 

claims, their rights under law to pursue and receive full, fair and just compensation for 

their asbestos injury claims, and/or the taking and deprivation of their Constitutional right 

to a fair, honest and just judicial proceeding together with the time value monetary loss 

due to their not timely receiving the full, fair and just compensation in a fair, honest and 

just judicial proceeding to which they were entitled.

277. Based upon information in the documents produced during the Paduano

spoliation investigation, at least several thousand asbestos claimants across the United 

States have been similarly so injured and harmed. Discovery and appropriate notice to the 

class may likely reveal the existence of even more. 

L. Defendants greatly benefited and profited from their participation in 

the Fraudulent Asbestos Defense Scheme.

278. BASF and Cahill Gordon each received substantial revenue or economic 

benefits from their participation in the Fraudulent Asbestos Defense Scheme and the 

losses and harm it inflicted upon Plaintiffs and members of the class by depriving them of 

their asbestos injury claim as well as their Constitutional right to a fair, honest and just 

judicial proceeding. Cahill Gordon earned professional fees for numerous years for its 

fraudulent and, indeed criminal (under the law of New York), activities associated with 

the Fraudulent Asbestos Defense Scheme. Cahill Gordon attorneys also benefited from 

being able to claim when marketing the firm or themselves that Engelhard, and later on, 

BASF, was a client for which it (or he/she) had successfully handled complex mass tort 

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litigation. BASF was able to eliminate, avoid or reduce its payments of compensation to 

asbestos injury claimants and reduce its overall defense transaction costs by the 

operations and activities of the Fraudulent Asbestos Defense Scheme. All participants in 

the Fraudulent Asbestos Defense Scheme also gained and were benefitted by the 

Fraudulent Asbestos Defense Scheme’s operations facilitating and maintaining both the 

continuity and the invisibility of the Fraudulent Asbestos Defense Scheme due to the 

grave economic and professional consequences that were possible if the scheme became 

exposed.

M. Defendants’ Clandestine Misconduct and Concealments Prevented 

Plaintiffs and Class Members From Discovering the Fraudulent 

Asbestos Defense Scheme Despite the Exercise of Diligence Thereby 

Warranting Tolling of Any Applicable Statute of Limitations.

279. For over twenty-five (25) years, the BASF Perpetrators and the Lawyer 

Perpetrators were able to successfully keep the Fraudulent Asbestos Defense Scheme 

secret and unknown by Plaintiffs, their counsel and others similarly situated. 

280. The successful operation of Defendants’ Fraudulent Asbestos Defense 

Scheme, as well as each Defendant’s own respective financial, corporate and/or 

professional well being once execution of the scheme got underway, depended upon: (a) 

the destruction, secreting and/or concealment of BASF’s and its predecessor companies’ 

documents and evidence relating to Class Members’ underlying asbestos injury claims 

beginning in 1984; (b) the concealment and cover-up of this spoliation of documents and 

evidence; (c) the secreting and concealment each Defendant’s respective role(s), 

activities and involvement in the spoliation of documents and evidence; and, (d) the 

secreting and concealment of the Defendants’ respective roles and activities in the 

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execution of the subsequent misrepresentation and fraudulent material misrepresentations 

relating to or based upon the spoliation of documents and evidence. 

281. The successful operation of Defendants’ Fraudulent Asbestos Defense 

Scheme, as well as their own financial, corporate and/or professional well being once 

execution of the scheme got underway, also depended upon there being continuity and 

consistency in making the exculpatory misrepresentations and misleading omissions 

involved in the scheme. Defendants therefore carefully, consistently and, as it turned out, 

successfully, secreted and concealed the Fraudulent Asbestos Defense Scheme as well as 

their involvement and activities in its commission until Mr. Swanson happened to come 

forward and testify in his daughter’s mesothelioma case. 

282. As set forth above, BASF, at Cahill Gordon’s direction or with its consent, 

affirmatively misrepresented facts concealing the spoliation of evidence, often under 

oath, in addition to making material omissions false statements. 

283. In view of the foregoing, Plaintiffs and the members of the Class could

therefore not have discovered the Fraudulent Asbestos Scheme alleged herein any earlier 

despite the exercise of reasonable diligence. Indeed, as indicated above, over the years 

that the Fraudulent Asbestos Defense Scheme was in existence the lawyers for Plaintiffs, 

as well as the lawyers for other similarly situated asbestos injury claimants, did their jobs 

of investigating and conducting discovery into BASF and its predecessors’ talc products, 

only to be directly or indirectly lied to by the BASF Perpetrators and Lawyer Perpetrators 

who were closely controlling and conducting BASF’s and its predecessors’ asbestos 

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claims defense. As set forth in the preceding paragraphs of this complaint, said 

investigation included but was not limited to:

a. Utilizing means of discovery authorized by rules of civil procedure 

including interrogatories and requests for production of documents which sought 

information regarding testing and/or other evidence related to the presence of 

asbestos in BASF’s talc, or talc products, its sale of asbestos and asbestos containing 

products, its knowledge of the risks of asbestos fibers to those near where asbestos 

containing products were used in the workplace, and whether it destroyed any 

evidence pertaining to the hazards of asbestos, warning labels or hazardous conditions 

at its plants or factories;

b. Engaging in written correspondence seeking clarification or comment 

from the defendants regarding information suggesting possible health risks caused by 

BASF’s talc or conditions at the Johnston Mine found through their investigation as 

claimants’ counsel as described above; and,

c. Considering the fact, reported by defendants, that other leading and 

experienced asbestos counsel had voluntarily withdrawn their clients’ cases against 

BASF based upon the material provided directly or indirectly by BASF and Cahill 

Gordon.

Moreover much of the Fraudulent Asbestos Defense Scheme to this day still remains 

concealed by Defendants and unknown to Plaintiffs and members of the Class. 

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284. Once the existence of the Fraudulent Asbestos Defense Scheme was 

suggested by the deposition testimony of Mr. Swanson in the Paduano suit, Ms. 

Paduano’s counsel began the Paduano spoliation investigation described above that led 

to revelation of the fraudulent scheme. Absent Mr. Swanson’s testimony, however, there 

was no reason or indication for asbestos injury claimants or their counsel to suspect or 

investigate the existence of the Fraudulent Asbestos Defense Scheme. 

285. In view of the foregoing, any applicable statutes of limitations should 

therefore be held inapplicable or tolled due to and on account of Defendants’ knowing 

and active concealment, suppression and denial of the facts alleged herein. Plaintiffs and 

members of the Class have, as a direct result of the conduct of the Defendants, been kept 

in ignorance of vital information essential to the pursuit of these claims, without any fault 

or lack of diligence on their part. Plaintiffs could not reasonably have discovered the 

spoliation and the fraudulent nature of Defendants’ conduct. Accordingly, Defendants 

should be stopped and/or enjoined from asserting or relying upon any of any statute of 

limitations, statutes of repose, laches, or defense to any substantive cause of action based 

upon time limitations, such as those contained in applicable personal injury and/or 

survival or wrongful death laws, to defeat any of Plaintiffs' claims asserted herein.

VI. CLASS ACTION ALLEGATIONS

286. Plaintiffs bring this action on behalf of themselves and pursuant to Rule 

23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure on behalf of a class (the 

“Class” or “Asbestos Claimant Class”) defined as follows:

All persons in the United States and its territories who were exposed to 

BASF’s talc and/or talc products, sustained an asbestos related injury and 

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prior to commencement of this litigation either: (a) filed a lawsuit or other 

claim for compensation against BASF and by reason of BASF’s 

statements that its talc and talc products did not contain asbestos or that 

there was no evidence its talc and talc products contained asbestos settled, 

withdrew, voluntarily dismissed or suffered an involuntarily dismissal of 

such lawsuit or claim for compensation; or (b) by reason of BASF’s 

statements that its talc and talc products did not contain asbestos or that 

there was no evidence it contained asbestos did not file a lawsuit or other 

claim for compensation against BASF. The class shall also include those 

who have or had the right to claim damages derivatively based upon such 

exposed person’s asbestos related injury.

For purposes of this class definition:

“BASF” means and includes BASF Catalyst, Inc. (“BASF”) or any of 

BASF’s predecessor companies that mined, manufactured, processed, 

distributed or sold talc ore or talc products, including but not limited to 

Engelhard Corporation, Engelhard Industries, Engelhard Minerals & 

Chemicals Corporation, Minerals & Chemicals Phillip Corporation, 

Eastern Magnesia Talc Company, Porocel Corporation and Pita Realty 

Limited (collectively “BASF Predecessor Companies”) 

287. Plaintiffs are members of the Class that they seek to represent. 

288. Members of the Class can be identified from Defendants’ records, court 

records, records of asbestos claimants’ counsel, records of unions in which Class 

Members belonged, and asbestos claims representatives and claimants’ records. Notice 

can be given to the Class through direct notice and general print and electronic 

publication means.

289. Plaintiffs’ claims are typical of the claims of the other Class Members’

because Plaintiffs and all putative Class Members were and are similarly affected by 

Defendants’ spoliation of asbestos evidence and the subsequent pattern and practice of 

uniform misrepresentations, concealments and suppression of material fact, and the 

declaratory and equitable relief sought and compensatory and punitive damages related to 

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defendants’ fraudulent concealment under New Jersey law herein is for the benefit of 

Plaintiffs and members of the putative Class. 

290. Class Members are so numerous that their individual joinder is 

impracticable. On information and belief the class numbers in many thousands.

291. Common questions of law and fact predominate over the questions 

affecting only individual Class Members. Some of the common legal and factual 

questions include:

a) Whether BASF and/or Cahill Gordon (and their respective officers,

employees or partners/members) fraudulently concealed and spoliated 

material evidence relating to Class Members’ underlying asbestos claims?

b) Whether BASF and Cahill Gordon (and their respective members, 

officers, employees or partners/members, concealed and covered up the 

spoliation of material evidence relating to Class Members’ underlying

asbestos claims? 

c) Whether Defendants Dornbusch, Hemstock and/or Halket and all or some 

of the Lawyer Perpetrators aided and abetted BASF’s spoliation of 

evidence relating to Class Members’ underlying asbestos claims?

d) Whether BASF and Cahill Gordon, and their respective employees or 

members, wrongfully, tortiously and unjustly utilized and exploited the 

spoliation of evidence relating to Class members’ underlying asbestos 

claims to BASF’s and Cahill Gordon’s benefit and the Class Members’ 

detriment and harm?

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e) Whether Defendants systematically and uniformly misrepresented to Class 

Members that BASF’s Predecessor Companies’ talc ore and talc products 

did not contained asbestos?

f) Whether Defendants systematically and uniformly misrepresented to Class 

Members that there was no evidence that BASF’s Predecessor Companies’

talc ore and talc products contained asbestos?

g) Whether Defendants knowingly and purposely withheld material 

information and facts to Class Members concerning the existence, 

whereabouts or fate of documents and other evidence regarding the 

presence of asbestos in BASF’s Predecessor Companies’ talc ore and talc 

products?

h) Whether Defendants systematically and uniformly withheld material 

information and facts to Class Members concerning the presence of 

asbestos in BASF’s Predecessor Companies’ talc ore and talc products?

i) Whether all or some of the Defendants conspired or acted in concert with 

other Defendants to commit the Fraudulent Asbestos Defense Scheme?

j) Whether any of the Defendants effectively withdrew from the conspiracy 

to commit the Fraudulent Asbestos Defense Scheme or any of its 

elements, and if so when? 

k) Whether Defendants are liable to the Class for compensatory and punitive 

damages and other available relief under New Jersey law for committing 

spoliation and fraudulent concealment of evidence or conspiring to do so?

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l) Whether Plaintiffs and the Class are entitled to declaratory or equitable 

relief based upon Defendants committing common law fraud, conspiring 

to commit common law fraud, or aiding and abetting other Defendants’ 

commission of common law fraud?

m) Whether Defendants committed obstructions of justice or a fraud upon the 

court by its commission of the Fraudulent Asbestos Defense Scheme?

n) Whether Plaintiffs and the Class are entitled to declaratory of equitable 

relief that alleviates and cures any impairment, detriment or harm inflicted 

upon them by the spoliation of the evidence relating to Class Members’ 

underlying asbestos claims, including any detriment or harm attributable 

to the passage of time such as loss of witnesses and documentation needed 

to establish a Class Members’ underlying asbestos injury claim?

o) Whether Plaintiffs and the Class are entitled to equitable relief that 

alleviates and cures any impairment, detriment or harm inflicted upon 

them by the Defendants’ fraudulent and deceitful misrepresentations, acts 

and omissions in furtherance of the Fraudulent Asbestos Defense Scheme, 

including any harm attributable to the passage of time such as loss of 

witnesses and other documentation needed to establish Class Members’ 

underlying asbestos injury claims?

p) Whether Defendants should on equitable principles be required to 

disgorge any moneys that are found to unjustly enrich them or were 

illegally earned?

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q) Whether assessment of compensatory and punitive damages against the 

Defendants is warranted and just under the circumstances?

r) Whether the spoliation of evidence relating to Class Members’ underlying 

asbestos injury claims was unknown and unknowable to Plaintiffs and 

members of the class due to Defendants’ concealment of the spoliation 

and its Fraudulent Asbestos Defense Scheme?

s) Whether in light of the extraordinary misconduct giving rise to this case, 

an immediate publication notice to the Class apprising them of the alleged 

circumstances and their legal rights at Defendants’ expense is warranted 

and should be ordered as preliminary injunctive relief?

t) Whether class members are entitled to a declaration that BASF’s and 

Cahill Gordon’s communications relating to the fraudulent conduct and/or 

the spoliation of evidence are not privileged attorney-client 

communication under the crime fraud exception?

u) Whether BASF and Cahill Gordon should be required to fund an 

independent trust established by the Court to locate, gather and take 

custody of BASF and Cahill Gordon documents and evidence relating to 

BASF’s talc products and thereafter establish and maintain a searchable 

archive of such materials for the benefit of the Class members?

v) Whether the fraudulent concealments and misrepresentations of the 

Defendant deprived Plaintiff's and other Class Members of their rights to 

trial by jury guaranteed by the 7th Amendment to the United States 

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Constitution and/or their rights to due process of law under the 14th

Amendment of the United States Constitution?

292. The Defendants engaged in a common course of conduct and in a 

common, coordinated fraudulent scheme giving rise to the legal rights sought to be 

enforced by Plaintiffs and the Class Members. Similar or identical statutory and common 

law violations are involved, and New Jersey’s statutory and common law, may be 

constitutionally, properly and prudentially applied in this matter to the Class Members’.

Individual questions, if any, pale in comparison to the numerous common questions that 

predominate.

293. The injuries sustained by Plaintiffs and Class Members flow, in each 

instance, from a common nucleus of operative facts — the spoliation of evidence and/or 

fraudulent or misleading denial of the existence of and/or withholding of evidence 

material to Class Members’ underlying asbestos injury claims; the Defendants’ uniform 

pattern practice of misrepresentations and deceitful misconduct and non disclosures 

regarding the nature of Engelhard’s “Emtal” talc products; and the Defendants’ false 

claim of nonexistence of any evidence that these products contained asbestos.

294. Plaintiffs and the Class Members have been damaged by the BASF 

Perpetrators’ and the Lawyer Perpetrators’ misconduct. In the absence of the BASF 

Perpetrators’ and the Lawyer Perpetrators’ fraudulent scheme, Plaintiffs and the Class 

Members would not have sustained the economic damages and losses described above

and the grave and egregious deprivation of their claim and right to fair and honest judicial 

proceeding. . 

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295. Plaintiffs will fairly and adequately protect the interests of the Class. 

Plaintiffs are familiar with the basic facts that form the bases of their and the Class 

Members’ claims. Plaintiffs’ interests do not conflict with the interests of the other Class 

Members that Plaintiffs seek to represent. Plaintiffs have retained counsel competent and 

experienced in Class action litigation and intend to prosecute this action vigorously. 

Plaintiffs’ counsel has successfully prosecuted complex asbestos, fraud and 

misrepresentation cases and class actions. Plaintiffs’ counsel also uncovered the 

Fraudulent Asbestos Defense Scheme during their representation of the plaintiffs in the 

Paduano suit, which has since resolved. Plaintiffs and Plaintiffs’ counsel will fairly and 

adequately protect the interests of the Class Members.

296. The Class is certifiable under Rule 23(b)(1) (A) in that prosecuting 

separate actions by individual class members against the Defendants could create a risk 

of inconsistent or varying adjudications with respect to individual class members that 

would establish incompatible standards of conduct for the party opposing the class, the 

Defendants herein.

297. The Class is certifiable under Rule 23(b)(2) in that all or some of the 

Defendants have acted or refused to act on grounds that apply generally to the class, so 

that final injunctive relief or corresponding declaratory relief is appropriate respecting the 

class as a whole.

298. The Class is certifiable under Rule 23(b)(3) because:

a. Individual litigation of the legal and factual issues raised by Defendants’ 

wrongful conduct would increase delay and expense to all parties and to the court 

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system, causing a denial of justice to many Class Members. The class action device 

presents far fewer management difficulties and provides the benefits of a single, 

uniform adjudication, economies of scale and comprehensive supervision and 

management of a complex situation created by Defendants’ egregious alleged 

misconduct by a single court. Given the similar nature of the Class Members’ claims, 

the uniform applicability New Jersey common-law in this case is warranted and 

proper due to, inter alia, the following factors: New Jersey’s overwhelming

significant contacts and government interests to the matter; the location of BASF’s 

and its predecessors’ headquarters in New Jersey; the spoliation of evidence 

occurring in New Jersey; and the commission of numerous deceitful acts and 

omissions taking place in New Jersey, where many of BASF’s its predecessor 

companies alleged fraudulent affirmations under oath were signed and notarized; and 

the relative absence of material differences in the laws upon which the Class 

Members’ claims are based; and,

b. The class action device is superior to other available means for the fair 

and efficient adjudication of the claims of Plaintiffs and the Class Members. The 

relief sought per individual members of the Class is small given the burden and 

expense of hundreds if not thousands of individual prosecution of the potentially 

extensive litigation necessitated by the Defendants’ wrongful conduct. 

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VII. CAUSES OF ACTION2

COUNT I

FRAUDULENT CONCEALMENT AND SPOLIATION

(Against All Defendants)

299. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein.

300. On or about March 7, 1984, and continuing thereafter as well, the BASF 

Perpetrators and Lawyer Perpetrators were cognizant and aware that BASF’s Predecessor 

Companies had been sued by asbestos injury claimants contending Engelhard’s Emtal 

talc mined at the Johnson Mine contained asbestos which caused asbestos personal 

injuries. 

301. On or about March 7, 1984, and continuing thereafter as well, the BASF 

Perpetrators and Lawyer Perpetrators were cognizant and aware that it was foreseeable 

and likely that BASF and its predecessor companies in the future would be sued by other 

asbestos injury claimants, including claimants who were injured or residing in New 

Jersey, and who would claim and contend that Engelhard’s Emtal talc contained asbestos 

which injured them.

302. On or about March 7, 1984, and continuing thereafter as well, given their 

knowledge about the volume and the wide use of Engelhard’s talc in the United States in 

many industries, including the tire and rubber product industry, construction joint 

 

2 Counts that have been dismissed by the Court and not reinstated directly or derivatively by the Third 

Circuit Court of Appeals” opinion and mandate during Plaintiffs’ appeal of the Court’s Motion to Dismiss 

rulings have been omitted. Plaintiffs do not by such deletion concede or admit that the deleted claims were 

or are in anyway invalid or lacked substantive merit.

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compound products, automotive body repair filler products, including the widely 

distributed “Bondo” brand, the latent and progressive nature of asbestos disease, and the 

state of asbestos litigation against the company at that time, the BASF Perpetrators and 

Lawyer Perpetrators were aware and understood that it was foreseeable and likely that 

BASF and its Predecessor Companies in the future would be sued by asbestos injury 

claimants, including claimants who were injured or residing in New Jersey, who would 

claim and contend that Engelhard’s Emtal talc mined at the Johnson Mine and/or 

products made with same contained asbestos which injured them.

303. In view of their knowledge that talc litigation was pending and that future 

asbestos injury claims against BASF and the BASF Predecessor Companies were 

foreseeable and likely, at all times material herein, including March 7, 1984, the BASF 

Perpetrators were under a duty to preserve evidence and documents that were relevant to 

such claims and litigation, including a duty to suspend any document retention policies 

that were in effect or were being put into operation as such related to documents and 

evidence relevant to asbestos injury claims involving Engelhard’s Emtal talc or the 

Johnson Mine. 

304. At all times material herein, including March 7, 1984, in view of their 

knowledge that claims against BASF involving personal injury claims currently existed 

and that future asbestos injury claims against the BASF Predecessor Companies were 

foreseeable and likely, the Lawyer Perpetrators were under a duty to counsel and advise 

BASF and its predecessors to preserve evidence and documents that were relevant to 

such claims, including the suspension of any document retention policies that were in 

effect or being put into operation as to such documents and evidence. The Lawyer 

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Perpetrators were also under a duty to not incite, assist, aid and abet BASF and its 

predecessors’ violation of its or their duty to preserve evidence. 

305. At all times material herein, Defendant BASF and the BASF Predecessor 

Companies also were under a legal duty of candor and truthfulness towards asbestos 

litigants suing it or them, as well as to courts presiding over the law suits concerning 

these claims. This duty of candor or truthfulness precluded the filing or submission of 

affidavits and verifications in support of facts, requests or motions where Defendant 

BASF and the BASF Predecessor Companies knew the facts to be false or where 

Defendant BASF and the BASF Predecessor Companies had no reasonable and good 

faith basis to believe and assert the facts as being true.

306. At all times material herein, the Lawyer Perpetrators, as counsel to BASF 

and the BASF Predecessor Companies in asbestos injury matters, had a duty to advise, 

counsel and instruct BASF and the BASF Predecessor Companies to provide candid, 

truthful and non-misleading factual affidavits, responses to discovery and other factual 

information in asbestos ligation matters in which they were a party and not submit or file 

affidavits and verifications in support of claims, defenses, requests or motions where 

Defendant BASF, the BASF Predecessor Companies, the BASF Perpetrators and/or the 

Lawyer Perpetrators knew that the facts being asserted or claimed were not true or where 

Defendant BASF and the BASF Predecessor Companies had no reasonable and good 

faith basis to believe and assert the facts as being true.

307. At all times material herein, the Lawyer Perpetrators, as counsel to BASF 

and the BASF Predecessor Companies in asbestos injury litigation matters, and as 

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officers of the court, were under a duty to prepare and serve documents, and/or monitor 

and review the preparation and service of documents, that related to the asbestos injury 

litigation so that the documents fairly, truthfully and candidly disclosed and/or produced 

material non privileged information and evidence to Plaintiffs and members of the Class 

relating to their underlying asbestos claims in accordance with the Federal Rules of Civil 

Procedure and state procedural law counterparts. Under these principles and authorities, 

and/or applicable professional responsibility codes or rules, the Lawyer Perpetrators were 

bound to a duty of fairness and candor to counsel and to courts that required that they not 

mislead or defraud Plaintiffs’ and members of the Class, or their counsel, or the courts in 

which the asbestos injury litigation cases were filed. 

308. As set forth above, and in violation of their duties regarding the 

preservation of evidence, beginning on or before March 7, 1984, the BASF Perpetrators 

and Lawyer Perpetrators, together with all or some of the Fictitious Defendants, began 

and continued to engage in a uniform and persistent pattern and practice of evidence 

spoliation by withholding, concealing and/or destroying material evidence relating to the 

Plaintiffs’ and Class Members’ underlying asbestos injury claims; all with the purpose 

and design of obstructing, impeding, impairing, disrupting and/or otherwise defeating the 

rights of asbestos injury litigation claimants in suits in which BASF and/or its 

predecessor companies was or were a party, and/or to deter and ward off the filing of 

asbestos injury claims against BASF and/or its predecessor companies.

309. As a result of the discovery in the Westfall case, beginning from at least 

1983, and continuing forward, the BASF Perpetrators and Lawyer Perpetrators, together 

with all or some of the Fictitious Defendants, knew that BASF and its predecessor 

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companies possessed inculpating material evidence relating to Plaintiffs’ and Class 

Members’ underlying asbestos injury claims in its or their possession, custody or control,

including evidence and corporate knowledge that BASF’s and its predecessor companies’ 

talc ore and talc products contained asbestos, including that developed or produced in the 

Westfall case’s discovery. 

310. At all times material herein, the BASF Perpetrators and Lawyer 

Perpetrators, together with all or some of the Fictitious Defendants, knew that BASF and 

the BASF Predecessor Companies’ records and corporate knowledge, along with 

discovery and other litigation materials, including deposition transcripts and related 

documents, in prior asbestos injury suits or claims, such as the Westfall case, were a 

material and important source of information and evidence regarding BASF’s and its 

predecessor companies’ talc ore and talc products. The BASF Perpetrators and Lawyer 

Perpetrators also knew that said information and evidence as time progressed could not 

be obtained by Plaintiffs and Class Members from any other source.

311. Sometime in and around 1983 or early 1984, the exact date being 

presently unknown to Plaintiffs, the BASF Perpetrators and the Lawyer 

Perpetrators agreed and conspired with each other, and/or with all or some of the 

Fictitious Defendants identified above, to commit the Fraudulent Asbestos Defense 

Scheme in which the material evidence relating to the Plaintiffs’ and the Class Members’ 

underlying asbestos injury claims would be gathered together and subsequently and 

systematically withheld, concealed and/or destroyed as an integral part of the scheme.

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312. As set forth above, the BASF Perpetrators and the Lawyer Perpetrators, 

together with all or some of the Fictitious Defendants identified above, either committed, 

aided and abetted the commission, and/or acted in concert with each other to commit the 

Fraudulent Asbestos Defense Scheme, in which the gathering and withholding, 

concealing and/or destroying material evidence relating to Plaintiffs’ and Class Members’ 

underlying asbestos injury claims was an integral part, as well as being overt acts in 

furtherance of the conspiracy. 

313. As a direct and proximate result of the above described deliberate 

gathering and withholding, concealment and/or destruction of documents and evidence 

relating to Plaintiffs’ and Class Members’ underlying asbestos injury claims, and/or the 

false and misleading statements thereafter that no such documents or evidence existed, 

Plaintiffs and others Class Members were harmed and injured in that they were materially 

hampered, impaired and prevented from proving their claims that BASF’s and its 

predecessor companies’ talc ore and talc products contained asbestos and proximately 

caused their underlying asbestos injury. 

314. As the direct, proximate and naturally occurring result of the above 

described deliberate gathering and withholding, destruction and/or concealment of 

documents and evidence relating to Class Members’ underlying asbestos claims, and/or 

the false and misleading statements thereafter that no such documents or evidence 

existed, Plaintiffs and members of the Class either: (a) suffered an involuntary dismissal 

of their lawsuit because they could not produce evidence contradicting BASF and its 

predecessor companies’ assertions and averments that its talc and talc ore did not contain 

any asbestos and there was no evidence that it did; (b) voluntarily dismissed or 

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discontinued their cases without consideration; (c) voluntarily dismissed or discontinued 

their cases for a nominal or token consideration instead of full, fair and complete 

compensation they were entitled to under law; or, (d) refrained from filing a claim or suit 

against BASF and/or its predecessor companies.

315. As the result of the voluntary or involuntary dismissal or discontinuance 

of asbestos claims against BASF and its predecessor companies, or the forbearance of 

filing an asbestos claim against BASF and its predecessor companies, Plaintiffs and 

members of the Class suffered the loss of their asbestos injury claim, their right under 

law to pursue and receive full, fair and just compensation for their asbestos injury claim

and their Constitutional right to a fair, honest and just judicial proceeding. 

316. As a further proximate result of the above described deliberate gathering 

and withholding, destruction and/or concealment of documents and evidence relating to 

Class Members’ underlying asbestos claims, and/or the false and misleading statements 

thereafter that no such documents or evidence existed, Plaintiffs and other Class 

Members may or will incur, or have already incurred pecuniary losses and damages, 

including but not limited to the loss of their underlying asbestos injury claim, the

expenses and costs of proceeding without this evidence, the expenses and costs incurred 

in the effort to replace, locate, or identify evidence, and/or the cost of prosecuting this 

case to prove fraudulent concealment and spoliation of evidence; any and all of which 

Plaintiffs and the members of the Class would not otherwise have suffered or incurred.

317. Plaintiffs and the class have been irreparably harmed by the defendant’s 

spoliation and fraudulent concealment for which there is no adequate remedy at law 

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given the extraordinary misconduct of the defendants and the circumstances they created 

thereby. Given the extraordinary circumstances here, together with the matter’s 

overwhelming contacts and connection to New Jersey, declaratory and equitable relief

from this Court is needed and warranted to help remedy the widespread injuries, harm

and deprivations suffered by Plaintiffs and the Class Members victimized by Defendants’ 

wrongdoing in the form of, inter alia: (a) a declaratory judgment determination and 

finding that the Defendants committed fraudulent concealment and spoliation that 

targeted persons making asbestos claims against BASF; (b) a robust notification program 

providing information about Defendants’ fraudulent concealment and spoliation, as well 

as other information designed to enable those victimized and injured by the fraud (or 

where deceased or incompetent their personal representatives or next of kin) to make an 

informed decision regarding any further pursuit of their legal remedies from the 

Defendants; (c) adjunct declaratory and injunctive relief curing, as needed and just, any 

evidentiary harm and proof impediments Defendants’ egregious misconduct is 

responsible for creating; (d) a decree and injunction imposing a constructive trust upon 

Defendants’ property to fund the creation and maintenance of an archive of BASF’s 

evidence and records that had been fraudulently concealed; and (e) a decree ordering 

Defendants to render an accounting and thereafter disgorgement of any monetary benefits 

and funds revealed in the accounting which, in all equity and conscious of the Court, 

Defendants should not retain under the circumstances, together with an equitable 

distribution of such disgorgement.

318. In addition to the forgoing equitable relief, and incident thereto, Plaintiffs 

and members of the class are entitled to an assessment of compensatory and punitive 

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damages against all Defendants under the Law of New Jersey wherein the fraudulent 

concealment of evidence including the spoliation of the documents and materials was 

committed, or such other law the Court finds applicable, for spoliating and fraudulently 

concealing evidence based upon their respective roles in committing, conspiring, aiding 

and abetting the spoliation of evidence material to Plaintiffs’ and Class Members’ 

underlying asbestos injury claims.

COUNT II

FRAUD AND DECEIT

(Against All Defendants)

319. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

320. As set forth above, beginning on or about March 7, 1984, the BASF 

Perpetrators and Lawyer Perpetrators, together with and all or some of the Fictitious 

Defendants, engaged in a continuous, uniform and persistent pattern and practice of 

falsely misrepresenting to Plaintiffs, members of the Class, their counsel, and presiding 

courts, that: 

a. BASF and its predecessor companies’ talc ore and talc products did not 

contain asbestos fibers; and/or

b. That there was not any evidence BASF and its predecessor companies talc 

ore and talc products contained asbestos.

321. Each such representation was false and misleading at the time it was 

made. 

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322. Defendants, acting as aforesaid, knew each representation was false and 

misleading or made the representation in reckless disregard as to its truth or falsity.

323. Each representation was deliberately made with the purpose and design of 

obstructing, impeding, impairing, terminating and/or otherwise disrupting asbestos injury 

litigation in which BASF and/or its predecessor companies was or were a party, and/or 

deterring and warding off the filing of asbestos injury claims against BASF and/or its 

predecessor companies.

324. In addition to the above misrepresentations, the BASF Perpetrators and 

Lawyer Perpetrators, together with all or some of the Fictitious Defendants, engaged in a 

continuous, uniform and persistent pattern and practice of directly or indirectly making 

material omissions of fact, or, alternatively, omitting and withholding facts that they were 

under a duty to divulge in order make any statements made, in the light of the 

circumstances under which they were made, not misleading, regarding: (a) the absence of 

asbestos in BASF’s and its predecessor companies’ talc ore and talc products; and/or, (b) 

the non-existence of evidence that BASF’s and its predecessor companies’ talc ore and 

talc products contained asbestos. 

325. Among other things Defendants uniformly failed to disclose to, and 

intentionally withheld from Plaintiffs and others similarly situated, or their legal counsel 

or courts, was the existence of the facts, deposition transcripts, documents and other 

evidence developed in the Westfall case discovery that established BASF’s and its 

predecessor companies’ talc ore and talc products contained asbestos, and/or that the 

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BASF Perpetrators’ had gathered and then withheld, concealed and destroyed material 

evidence relating to Plaintiffs’ and Class Members’ underlying asbestos injury claims.

326. Defendants, acting as aforesaid, knew each represented, omitted or 

withheld fact and/or their non disclosures, were false and misleading to those they were 

made or directed to, including Plaintiffs and members of the Class, their respective 

counsel, and where and when applicable, presiding courts. Defendants knew and intended 

their misrepresentations and non-disclosures would be repeated or republished amongst 

the asbestos plaintiffs’ bar, be accepted as true and affect the advice given to and 

decisions made by asbestos claimants regarding asbestos claims against BASF.

327. As set forth above the BASF Perpetrators and the Lawyer Perpetrators 

agreed or conspired with each other, and/or with all or some of the Fictitious Defendants 

identified above, to commit the Fraudulent Asbestos Defense Scheme, in which the 

fraudulent misrepresentations and material misrepresentations were an integral part as 

well as constituting an overt act in furtherance of this conspiracy.

328. Each misrepresentation and omission of material fact was deliberate and 

committed with the intent, purpose and design of obstructing, impeding, impairing, 

terminating and/or otherwise disrupting asbestos injury litigation in which BASF and/or 

its predecessor companies was or were a party, and/or deterring and warding off the 

future filing of asbestos injury claims against BASF and/or its predecessor companies, as 

well as to cover up Defendants’ wrong doing and conspiracy.

329. Plaintiffs and members of the Class, as did their counsel, naturally,

reasonably and detrimentally relied upon the above misrepresentations and omissions 

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causing Plaintiffs and Class Members to either: (a) suffer an involuntary dismissal of 

their lawsuit because they could not produce evidence contradicting BASF and its 

predecessor companies’ assertions and averments that its talc and talc ore did not contain 

any asbestos and/or there was no evidence that it did; (b) suffer a voluntary dismissal or 

discontinuance of their cases without consideration; (c) suffer a voluntary dismissal or 

discontinuance of their cases for a nominal or token consideration instead of full, fair and 

complete compensation they were entitled to under law; or, (d) refrain from filing a claim 

or suit against BASF and/or its predecessor companies.

330. Plaintiffs and the class have been irreparably harmed by the defendant’s 

fraudulent misrepresentations and omissions for which there is no adequate remedy at 

law given the extraordinary misconduct of the defendants and the circumstances they 

created thereby. Given the extraordinary circumstances here, together with the matter’s 

overwhelming contacts and connection to New Jersey, declaratory and equitable relief

from this Court is needed and warranted to help remedy the widespread injuries, harm

and deprivations suffered by Plaintiffs and the Class Members victimized by Defendants’ 

wrongdoing in the form of, inter alia: (a) a declaratory judgment determination and 

finding that the Defendants committed fraud that targeted persons making asbestos 

claims against BASF; (b) a robust notification program providing information about 

Defendants’ fraud as well as other information designed to enable those victimized and 

injured by the fraud (or where deceased or incompetent their personal representatives or 

next of kin) to make an informed decision regarding any further pursuit of their legal 

remedies from the Defendants; (c) adjunct declaratory and injunctive relief curing, as 

needed and just, any evidentiary harm and proof impediments Defendants’ egregious 

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misconduct is responsible for creating; (d) a decree and injunction imposing a 

constructive trust upon Defendants’ property to fund the creation and maintenance of an 

archive of BASF’s evidence and records that had been fraudulently concealed; and (e) a 

decree ordering Defendants to render an accounting and thereafter disgorgement of any 

monetary benefits and funds revealed in the accounting which, in all equity and conscious 

of the Court, Defendants should not retain under the circumstances, together with an 

equitable distribution of such disgorgement.

COUNT III

CIVIL CONSPIRACY

(Against All Defendants)

331. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein

332. Sometime between 1983 and March of 1984, the exact date being 

unknown to Plaintiffs, the BASF Perpetrators and Lawyer Perpetrators, as well as all or 

some of the fictitious John Doe Defendants, entered into a conspiracy by agreeing with 

each other each to wrongfully and tortiously implement and carry out what is the 

Fraudulent Asbestos Defense Scheme described above. 

333. The BASF Perpetrators and Lawyer Perpetrators, as well as all or some of 

the fictitious John Doe Defendants agreeing to participate, understood the general 

objectives of the Fraudulent Asbestos Defense Scheme, as described above, accepted 

them, and agreed to do their part to further them as well as to conceal the Fraudulent 

Asbestos Defense Scheme and each member of the conspiracy’s part and role in same.

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334. The co-conspirators, the BASF Perpetrators, Lawyer Perpetrators, together 

with all or some of the fictitious John Doe Defendants, have engaged in, or have aided 

and abetted the commission of, numerous overt and fraudulent predicate acts in 

furtherance of the conspiracy, including the spoliation of the documents, and making 

material misrepresentations and omissions designed to defraud Plaintiffs and Class 

Members of their asbestos injury claims as described above.

335. The nature of the above-described co-conspirators' acts, material 

misrepresentations, and material omissions in furtherance of the conspiracy gives rise to 

an inference that the BASF Perpetrators, Lawyer Perpetrators and John Does Defendants 

involved and part of the conspiracy not only agreed to the objective of the Fraudulent 

Asbestos Defense Scheme, but were aware that their ongoing unlawful and fraudulent 

acts have been and are part of an overall pattern of activity that was and is unlawful.

336. As a direct and proximate result of the BASF Perpetrators’ and Lawyer 

Perpetrators’ overt acts and predicate acts in furtherance of the conspiracy, Plaintiffs and 

members of the Class suffered the loss of their asbestos injury claims, their right under 

law to pursue and receive full, fair and just compensation for their asbestos injury claims 

and their Constitutional right to a fair, honest and just judicial proceeding, thereby 

significantly damaging and injuring them. 

337. Plaintiffs and the class have been irreparably harmed by the defendant’s 

conspiracy to implement and conduct the Fraudulent Asbestos Defense Scheme for which 

there is no adequate remedy at law given the extraordinary misconduct of the defendants 

and the circumstances they created thereby. Given the extraordinary circumstances here, 

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together with the matter’s overwhelming contacts and connection to New Jersey, 

declaratory and equitable relief from this Court is needed and warranted to help remedy 

the widespread injuries, harm and deprivations suffered by Plaintiffs and the Class 

Members victimized by Defendants’ wrongdoing in the form of, inter alia: (a) a 

declaratory judgment determination and finding that the Defendants committed 

fraudulent concealment, spoliation of evidence and common law fraud and deceit, that 

involved and targeted persons making asbestos claims against BASF; (b) a robust 

notification program providing information about Defendants’ tortious wrongdoings, as 

well as other information designed to enable those victimized and injured by 

Defendants’ wrongdoing (or where deceased or incompetent their personal 

representatives or next of kin) to make an informed decision regarding any further pursuit 

of their legal remedies from the Defendants; (c) adjunct declaratory and injunctive relief 

curing, as needed and just, any evidentiary harm and proof impediments Defendants’ 

egregious misconduct is responsible for creating; (d) a decree and injunction imposing a 

constructive trust upon Defendants’ property to fund the creation and maintenance of an 

archive of BASF’s evidence and records that had been fraudulently concealed; and (e) a 

decree ordering Defendants to render an accounting and thereafter disgorgement of any 

monetary benefits and funds revealed in the accounting which, in all equity and conscious 

of the Court, Defendants should not retain under the circumstances, together with an 

equitable distribution of such disgorgement.

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VIII. DEMAND FOR RELIEF

WHEREFORE, Plaintiffs in their own right, and on behalf of others similarly 

situated, demand judgment against Defendants jointly, severally and in the alternative for 

the following relief:

a. Certification of the matter as a class action under Rule 23 as requested;

b. A declaratory determination and judgment that fraudulent concealment 

and spoliation of material evidence relating to the existence of asbestos BASF’s talc 

has occurred to the detriment of the class members with corresponding mandatory 

injunctive relief requiring defendants to locate and notify Class members or, if 

applicable, their personal representatives or their next of kin as of this finding and 

their corresponding need to promptly consult with counsel regarding their legal rights 

as a result; 

c. A declaratory determination and judgment that BASF, Cahill Gordon and 

the individual defendants committed fraud and deceit relating to the existence of 

asbestos BASF’s talc to the detriment and harm of the class members with 

corresponding mandatory injunctive relief requiring defendants to locate and notify 

Class members or, if applicable, their personal representatives or their next of kin as 

of this finding and their corresponding need to promptly consult with counsel 

regarding their legal rights as a result;

d. Such further declaratory and equitable relief addressing and alleviating 

any impairment of Plaintiffs’ and Class Members’ ability to gather and present 

evidence establishing their underlying asbestos injury claims that Defendants’ 

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spoliation and ensuing misrepresentations and material omissions proximately 

caused, including, but not limited to any detrimental loss or impact on Plaintiffs’ and 

Asbestos Claimant Class Members’ ability to: (i) establish the dangerous, defective 

nature of Engelhard’s talc ore or products; (ii) establish harmful exposure to 

Engelhard’s talc ore or products; (iii) establish Engelhard’s failure to warn; and/or, 

(iv) establish the heeding of any proper warning or precautions that should have been 

given in connection with Engelhard’s talc ore or products; 

e. A determination and declaration of the need for and ordering execution of 

a notice program paid for by Defendants informing Class Members or their 

representatives of the pendency of this action, the BASF and Cahill’s alleged 

misconduct and the import and possible impact of same on their present or former 

asbestos injury claims, and their rights to proceed against Defendants;

f. An injunction requiring BASF and Cahill Gordon to jointly and severally 

fund the maintenance of an independent, perpetual trust established by the court for 

the purpose of locating, collecting, housing, archiving and making available BASF’s 

asbestos documents and materials to Plaintiffs, class members and other persons or 

authorities designated by the Court, and further ordering and decreeing that BASF 

and Cahill Gordon shall assist and cooperate fully with the court’s appointed trustees 

in the accomplishment of these remedial objectives, including providing, as needed 

information, waivers of privilege and waivers of confidentially rights;. 

g. A permanent injunction enjoining the Defendants from further 

misrepresenting and suppressing evidence relating to BASF’s asbestos liability and 

Engelhard’s talc ore or products;

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h. A declaration, injunction or decree imposing a constructive trust upon 

BASF’s and Cahill Gordon’s property and requiring BASF and Cahill Gordon to each 

render an accounting to the Court of all fees, revenues, costs, insurance proceeds, and 

expense savings relating to Plaintiff s and absent class member’s asbestos injury 

claims. 

i. A determination and declaration of BASF’s and Cahill Gordon’s liability 

for disgorgement or restitution of revenues, profits and money unjustly earned from 

the commission of the frauds upon the courts, upon Plaintiffs’ and members of the 

class and/or by the commission of proscribed activities described above;

j. A determination of Defendants’ liability for compensatory and punitive 

damages to Plaintiffs and the Class relating to the fraudulent concealment and 

spoliation of evidence relevant and material to establishing asbestos injury claims 

against BASF;

k. A determination and declaration that BASF’s and Cahill Gordon’s 

communications relating to the their fraudulent conduct and/or the spoliation of 

evidence are not privileged attorney-client communication under the crime fraud 

exception and an injunction barring and prohibiting either from asserting same are 

privileged in any proceeding involving and class members asbestos injury claims;;

l. Such other relief as may be available and just. 

JURY DEMAND

Plaintiffs hereby demand trial by Jury on all issues so triable.

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Dated: July 16, 2015 Respectfully Submitted,

 COHEN, PLACITELLA & ROTH, P.C.

 ____/s/ Christopher M. Placitella____

Christopher M. Placitella, Esq.

 ____/s/ Michael Coren_____________

Michael Coren. Esq. 

Jared Placitella Esq.

cplacitella@cprlaw.com

mcoren@cprlaw.com

jmplacitella@cprlaw.com

127 Maple Ave

Red Bank, New Jersey 07701

(732) 747-9003

Fox Rothschild LLP

Jeffrey M. Pollock

Princeton Pike Corp. Center

997 Lennox Drive, Building 3 

Lawrenceville, NJ 08648

Telephone: 609-896-7660

Attorneys for Plaintiffs and the Proposed Class

Of Counsel:

Stewart L. Cohen, Esq.*

Harry M. Roth, Esq.*

Robert Pratter Esq.**

Two Commerce Square

2001 Market Street, Suite 2900

Philadelphia, PA 19103

(215) 567-3500

(* Pro hac vice admission)

(** Pro hac vice admission to be 

applied for)

CERTIFICATION OF SERVICE 

I, Michael Coren, Esquire, of full age, hereby certify that on 16th day of July, a true 

and correct copy of the foregoing Second Amended Complaint was filed with the Court’s 

CM/ECF system and will be served on all counsel of record through the ECF system.

___/s/ Michael Coren________

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