1

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 

AMENDED CLASS 

ACTION COMPLAINT 

Jury Trial Demanded 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 1 of 173 PageID: 1766
2

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 2 of 173 PageID: 1767
3

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.” 

 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 3 of 173 PageID: 1768
4

Table of Contents 

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

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

III. PARTIES .............................................................................................................. 18

A. Plaintiffs ................................................................................................................ 18

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

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

(2) The Cahill Gordon & Reindel Defendants .......................................................... 35

(3) The Fictitious Defendants ................................................................................... 40

IV. VENUE AND JURISDICTION. ................................................................................ 41

V. FACTS COMMON TO CLASS CERTIFICATION AND ALL COUNTS ............... 42

A. Asbestos Background Information ....................................................................... 42

B. Engelhard’s Emtal Talc Products and Asbestos ................................................... 43

C. The Westfall Asbestos Lawsuit’s Discovery ......................................................... 46

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

BCAD Enterprise .......................................................................................................... 53

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

Westfall Case. ................................................................................................................ 56

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

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

Courts. ........................................................................................................................... 59

G. Representative Misrepresentations and Material Omissions in Furtherance of the 

Fraudulent Asbestos Defense Scheme .......................................................................... 65

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. ................................................................................................................... 68

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). .................................... 74

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). .................................................................... 76

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 4 of 173 PageID: 1769
5

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

Global, Inc. ........................................................................................................... 82

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. ...................................... 90

H. The Discovery and Uncovering of the Fraudulent Asbestos Defense Scheme .. 108

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

Suit’s Plaintiffs’ Counsel Regarding Emtal Talc’s Asbestos Content ........................ 115

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 ..... 116

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

Victimized and Harmed by the Fraudulent Asbestos Defense Scheme ...................... 118

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

Fraudulent Asbestos Defense Scheme. ....................................................................... 119

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. ................................................................................................................. 120

VI. CLASS ACTION ALLEGATIONS ........................................................................ 123

VII. CAUSES OF ACTION ........................................................................................... 133

COUNT I - VIOLATION OF N.J.S.A. § 2C:41-2c.................................................... 133

COUNT II - VIOLATION OF N.J.S.A. § 2C:41-2D BY CONSPIRING TO VIOLATE 

N.J.S.A. § 2C:41-2C ................................................................................................... 144

COUNT III - FRAUDULENT CONCEALMENT - SPOLIATION .......................... 146

COUNT IV - FRAUD AND DECEIT ........................................................................ 154

COUNT V - FRAUD UPON THE COURT ............................................................... 158

COUNT VI - VIOLATION OF N.Y JUDICIARY LAW §487 ................................. 160

COUNT VII - UNJUST ENRICHMENT ................................................................... 164

COUNT VIII - UNJUST ENRICHMENT ................................................................. 165

COUNT IX - Civil conspiracy .................................................................................... 166

VIII. DEMAND FOR RELIEF ................................................................................... 168

 JURY DEMAND ........................................................................................................ 171

 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 5 of 173 PageID: 1770
6

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, Defendant BASF Catalyst, LLC, then known as Engelhard Corporation 

(collectively “BASF”), together with the law firm of Cahill Gordon & Reindel, LLP 

(“Cahill Gordon”), devised 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 ore and products 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 understanding of what happened, 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 6 of 173 PageID: 1771
7

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. Nevertheless, 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 Amended Complaint for equitable relief so 

that each of them and every other member of the class ultimately receive their 

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

injury claims. 

II. SUMMARY OF THE CASE 

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

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 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 stored and/or 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 7 of 173 PageID: 1772
8

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, 

demonstrating that BASF talc and talc products contained asbestos fiber they had in their 

possession or that they destroyed. Their false denials of the existence of this evidence 

resulted in the obstruction of justice, fraud upon courts, and damage to the property rights 

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

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”). 

4. The targets and victims of Defendant BASF’s fraudulent suppression and 

misrepresentation 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 8 of 173 PageID: 1773
9

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 lawyers 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 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 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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 9 of 173 PageID: 1774
10

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 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 for their respective asbestos 

injury claims as was their property right under the 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 ore and talc 

products 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 

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

instigation and direction of BASF’s legal department. This spoliation of evidence, on 

information and belief, was committed with the knowing aid and assistance of BASF’s 

national asbestos counsel, Cahill Gordon. This evidence was then either destroyed by the 

defendants or secreted away. Despite inquiry in a prior New Jersey state court 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 10 of 173 PageID: 1775
11

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 and outside defense attorneys (Cahill Gordon) witnessing first hand or otherwise 

knowing about sworn deposition testimony of Engelhard’s research and management 

employees, including Dr. Hemstock, 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 knew BASF 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 inculpatory testimony and 

documents referenced during the Engelhard employee depositions in the Rhode Island 

asbestos case, were or could be relevant to such asbestos injury lawsuits and claims. The 

collection and 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 11 of 173 PageID: 1776
12

10. With the inculpatory 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 thatEngelhard’s talc’s 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 after 

BASF became aware that the Fraudulent Asbestos Defense scheme was beginning to 

become uncovered in or about 2009, the scheme was nevertheless allowed to continue on 

into 2011 as set forth herein. Notably none of the defendants herein has ever taken any 

step or measure to affirmatively reveal the existence of, or renounce their participation in, 

the Fraudulent Asbestos Defense Scheme or to 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 12 of 173 PageID: 1777
13

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 and in-house attorney employees; and, (c) the law firm and lawyers 

of Cahill Gordon, 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 

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 13 of 173 PageID: 1778
14

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 

greatly 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 recently in 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. 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 14 of 173 PageID: 1779
15

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

the fact that during his employment with Engelhard material documents relating to the 

talc were gathered from research department employees and destroyed at the direction of 

Engelhard’s legal department. Mr. Swanson was deposed in connection with a New 

Jersey Superior 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, and were not known to members of the Class 

despite the diligent efforts of their counsel; which ignorance of these things 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 15 of 173 PageID: 1780
16

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

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

a. Declaratory and equitable relief restoring members of the Asbestos 

Claimant Class back, as near as possible, to the position they were in prior to the 

commission of Defendants’obstruction of justice and fraud, including but not limited 

to, should the Court find it equitable and just, a declaration or injunction: (i) 

prohibiting the BASF and Cahill Gordon defendants from asserting or claiming 

against Plaintiffs and members of the Class the benefit of res judica or any other 

claim preclusion doctrine or right based upon prior litigation or a claim adjudication 

concerning BASF’s talc or talc products; (ii) barring the BASF and Cahill Gordon 

defendants from asserting any time passage related defense such as statutes of 

limitations, laches, repose or death action claim time commencement requirement; 

and/or (iii) upon a Plaintiff’s or any class member’s election to file or re-file suit 

against BASF and the repayment to BASF of any money paid by BASF in 

consideration of a settlement, barring Defendants from asserting any defense based 

upon the existence of a release of claims, covenants not to sue or settlement 

agreement; 

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, 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 16 of 173 PageID: 1781
17

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; 

c. 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; 

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 from the 

commission of the frauds upon the courts, Plaintiffs and members of the class 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 punitive damages to Plaintiffs 

and the Class relating to the spoliation of evidence relevant and material to 

establishing asbestos injury claims against BASF; 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 17 of 173 PageID: 1782
18

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 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; 

h. A 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 confidentially 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. 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 18 of 173 PageID: 1783
19

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 19 of 173 PageID: 1784
20

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 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 attorneys and representatives, Dale S. 

Economus, Esq. and Thomas W. Bevan, Esq., 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 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 20 of 173 PageID: 1785
21

(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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 21 of 173 PageID: 1786
22

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 22 of 173 PageID: 1787
23

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 23 of 173 PageID: 1788
24

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 24 of 173 PageID: 1789
25

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, 

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, 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 25 of 173 PageID: 1790
26

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 26 of 173 PageID: 1791
27

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 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 27 of 173 PageID: 1792
28

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 28 of 173 PageID: 1793
29

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 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 29 of 173 PageID: 1794
30

34. On or about August 30, 2001 October 31, 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, 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 30 of 173 PageID: 1795
31

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, principle 

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 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. 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 31 of 173 PageID: 1796
32

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” indentified 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 assigned asbestos claim matters 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” indentified 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. Halket never expressly or affirmatively advised his co-conspirators or 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 32 of 173 PageID: 1797
33

anyone outside of the conspiracy, such the affected courts, claimant 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. 

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” indentified 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 the affected courts, claimant 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. 

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 is 

and 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 33 of 173 PageID: 1798
34

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” indentified 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 the affected courts, claimant 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. 

44. With respect to the activities, conduct 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. 

45. The BASF Perpetrators, including attorney defendants Dornbusch and 

Halket in their representation of BASF, and in carrying out the functions of the 

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

harm, deceive and defraud the plaintiffs, class members and, as described more fully 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 34 of 173 PageID: 1799
35

below, presiding courts in which asbestos matters were pending, including the asbestos 

Multi-District Litigation court. 

(2) The Cahill Gordon & Reindel Defendants 

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

individually 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 

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 relevant statutorily 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 individually for context) is and was a New York professional partnership that was in 

existence from 1919 until April 29, 2003, at which time it was succeeded to by Cahill 

LLP in an organizational form change transaction. 

49. Defendant Cahill Partnership regularly and continuously transacted 

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

relevant statutorily unlawful and other tortious conduct in, and directed towards, New 

Jersey and citizens of New Jersey. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 35 of 173 PageID: 1800
36

50. At all times material herein, Defendants Cahill LLP and Cahill Partnership 

(collectively “Cahill Gordon”) acted by and through their shareholders, members, 

partners, officers, employees, servants, associate 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, apparent or ostensible, and/or 

within the authority of his or her copartners or 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 or members. Defendant 

Cahill Gordon is liable herein under the doctrine of respondeat superior for the actions of 

its partners, members, officers, agents, employees, servants and associate attorneys. All 

Cahill Gordon partners, members or shareholders are jointly and severally liable for the 

negligent or wrongful acts, omissions of him or her, his or her partners, and/or for any 

negligent or wrongful act of misconduct committed by persons under his or her direct 

supervision and control while rendering professional services. As a New York law firm, 

Cahill Gordon and its attorneys are also subject to the prohibitions, penalties and civil 

remedies relating to attorney misconduct in court matters provided by N.Y. Judiciary 

Law §487. 

51. From at least 1983 and continuing to in or about 2010, Defendant 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 36 of 173 PageID: 1801
37

52. 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 the affected courts, claimant counsel or claimants, that it withdrew from the 

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

following its termination as BASF’s National Counsel. 

53. 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. 

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

times relevant hereto a member of the bar of New York State, a partner in the Cahill 

Partnership and then a 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 entrusted with the representation of BASF in 

asbestos claim matters. Defendant Sloane jointly conceived, orchestrated and 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 37 of 173 PageID: 1802
38

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 the affected courts, claimant counsel or claimants, that he withdrew 

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

following his termination as counsel for BASF. 

55. 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 

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

Martin 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 his Cahill 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 38 of 173 PageID: 1803
39

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

affirmatively advised his co-conspirators or anyone outside of the conspiracy, such the 

affected courts, claimant counsel or claimants, that he withdrew from the conspiracy, and 

consequently is liable for the acts of his co-conspirators following his termination as 

counsel for BASF. 

56. 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 entrusted with and responsible for the representation of 

BASF in asbestos claim matters. Dembrow 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 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 soshareholders. Dembrow never expressly or affirmatively advised his co-conspirators or 

anyone outside of the conspiracy, such the affected courts, claimant counsel or claimants, 

that he withdrew from the conspiracy, and consequently is liable for the acts of his coconspirators following his termination as counsel for BASF. 

57. With respect to the activities, conduct and omissions set forth herein, 

Defendants Cahill Gordon, Sloane, Martin and/or Dembrow (collectively referred to as 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 39 of 173 PageID: 1804
40

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 Plaintiffs and the 

Asbestos Claimant Class. 

58. The Lawyer Perpetrators in and during their and its representation of 

BASF and in carrying out the functions of the Fraudulent Asbestos Defense Scheme, 

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, presiding courts in which 

asbestos matters were pending, including the asbestos Multi-District Litigation court. 

(3) The Fictitious Defendants 

59. 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. 

60. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 40 of 173 PageID: 1805
41

of, or in conjunction with the other Defendants in the conduct, activities, acts and 

omissions as set forth herein. 

61. 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. 

62. 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. 

IV. VENUE AND JURISDICTION. 

63. This Court has subject-matter jurisdiction over this nationwide class action 

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, 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 41 of 173 PageID: 1806
42

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). 

64. 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 

65. Asbestos is a naturally occurring mineral and is a human carcinogen. 

66. 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. 

67. Other forms of asbestos are amosite, crocidolite, tremolite, actinolite and 

anthophyllite. The United States Environmental Protection Agency, the Occupational 

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. 

68. 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. 

69. Asbestos has been identified as a contaminant of some talc mines. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 42 of 173 PageID: 1807
43

B. Engelhard’s Emtal Talc Products and Asbestos 

70. 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. 

71. The Johnson Mine was closed in 1983. 

72. 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. 

73. 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. 

74. 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 

coating in or on the following products: wall board, joint compound, auto body “filler,” 

dusting agents and children’s balloons. 

75. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 43 of 173 PageID: 1808
44

76. During the 1970s and continuing through the early 1980s, BASF through 

its internal personnel or outside consultants or 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. 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. 

77. 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. 

78. The tests and assay results are scientific and business records that BASF 

and predecessors regularly kept and maintained. 

79. The test and assay results conducted on Johnson Mine talc ore and 

processed Emtal talc products found asbestos fibers in the ore and products. 

80. Among the testing 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 44 of 173 PageID: 1809
45

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. 

81. 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 

implications of such positive test and assay findings on BASF’s liability exposure and 

national risk management program regarding asbestos injury claims. 

82. 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 nonCase 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 45 of 173 PageID: 1810
46

publically available data, opinions, findings and conclusions of experts which established 

that the Johnson Mine talc and/or Emtal talc products contained asbestos. 

83. 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 wide spread and unknowing exposure to asbestos to United 

States citizens, including workers and workers’ spouses and children, nationwide. 

C. The Westfall Asbestos Lawsuit’s Discovery 

84. 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. 

85. In the Westfall case, plaintiff indentified 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. 

86. BASF was represented and defended in the Westfall case by, among 

others, Cahill Gordon, its national counsel. 

87. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 46 of 173 PageID: 1811
47

88. 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. 

89. 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. 

90. 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. 

91. 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. 

92. 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. 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 47 of 173 PageID: 1812
48

and complete copy of the entire Hemstock transcript including all exhibits cannot be 

appended. 

93. 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. 

94. Defendant Sloane was also present at and represented Defendant 

Hemstock and BASF at Hemstock’s deposition in the Westfall case. 

95. Defendant Halket was also present at Dr. Hemstock’s Westfall case 

deposition in his capacity as BASF in-house counsel. 

96. 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. 

97. 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. 

98. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 48 of 173 PageID: 1813
49

99. 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. 

100. 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.” 

101. 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. 

102. 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 future asbestos risk management 

created by Hemstock’s testimony and the test and assay results showing the presence of 

asbestos fiber in BASF products indentified during his deposition in the Westfall case. 

103. Defendant Halket and other BASF Perpetrators were aware of and 

appreciated the negative implications on BASF’s asbestos injury claim liability and 

BASF’s future asbestos risk management created by Hemstock’s testimony and the test 

and assay results showing the presence of asbestos fiber in BASF products indentified 

during his deposition in the Westfall case. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 49 of 173 PageID: 1814
50

104. 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. 

105. 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”). 

106. 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. 

107. 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. 

108. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 50 of 173 PageID: 1815
51

109. 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. 

110. During his deposition in the Westfall case, Triglia testified that Emtal talc 

contained asbestos fibers. 

111. 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. 

112. 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. 

113. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 51 of 173 PageID: 1816
52

114. 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. 

115. 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. 

116. Copies of Triglia’s deposition were circulated or mailed to BASF’s inhouse attorneys, including Defendant Halket, and to the Lawyer Perpetrators. 

117. The BASF Perpetrators and the Lawyer Perpetrators were aware and 

appreciated the negative implications on BASF’s asbestos injury claim liability and 

BASF’s future asbestos risk management of both Triglia’s testimony and the test and 

assay results showing the presence of asbestos fiber in BASF products indentified during 

Triglia’s deposition. 

118. At the time of the Westfall case, the BASF and 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 52 of 173 PageID: 1817
53

D. The Westfall Case’s Settlement and Confidentiality Agreement and 

Origins of the BCAD Enterprise 

119. 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 Emtal talc products contained asbestos produced in the Westfall case had 

upon not only the Westfall case, but upon BASF’s asbestos claim liability and 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. 

120. 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 

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 

confidentially 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 taken under the 

pretense or guise of record retention management to gather-up and then limit access or 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 53 of 173 PageID: 1818
54

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, and members of each 

company, to implement the scheme and conceal its existence and operation from all 

persons and institutions outside of BASF and Cahill Gordon. 

121. On information and belief, sometime following the depositions of 

Defendant Hemstock and Mr. Triglia in 1983 and prior to March 7, 1984, members of 

BASF’s management, in-house General Counsel’s office, including but not limited to 

Defendants Dornbusch, Hemstock, and Halket, obtained BASF’s (then Engelhard’s) 

management’s consent and authorization to implement and execute the strategy, plan and 

scheme. 

122. On information and belief, Defendant Sloane and other Cahill Gordon 

lawyers obtained Defendant Cahill Gordon’s management’s authorization or acquiesces 

in implementing and executing the BASF asbestos defense strategy, plan and scheme. 

123. To execute, manage and control the asbestos defense plan and scheme, 

which due to the nature of asbestos injury claims was foreseeably expected to continue on 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 54 of 173 PageID: 1819
55

for decades, an association in fact arose in or about 1983 or 1984, the exact date being 

presently unknown to Plaintiffs, that was comprised of the BASF Perpetrators, the 

Lawyer Perpetrators, and other BASF and Cahill Gordon related personnel over time. As 

mentioned, this association in fact is identified and referred to as the “BASF-Cahill 

Gordon Asbestos Defense Enterprise” or “BCAD Enterprise” for short. The BCAD 

Enterprise had both legitimate and illegitimate functions and purposes in conducting 

BASF’s asbestos injury claim defense. 

124. BASF, through Cahill Gordon, settled the Westfall case. 

125. 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, the inculpatory evidence developed in the Westfall case was either 

destroyed or secreted away by the BASF Perpetrators after the case was settled. 

126. The Westfall case settlement and confidentiality agreement were parts of 

the BASF and Lawyer Perpetrators’ plan, scheme and agreement to mislead, deceive and 

defraud asbestos injury claimants and their attorneys, and in some circumstances the 

courts directly, regarding the merit of asbestos injury claims against BASF based upon 

Emtal talc products. 

127. 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 and Lawyer Perpetrators’ agreement and conspiracy to (a) mislead, deceive and 

defraud asbestos injury claimants, asbestos claimant attorneys and presiding asbestos 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 55 of 173 PageID: 1820
56

courts, including the federal District Court asbestos multi-district litigation, regarding the 

viability or the merit of asbestos injury claims against BASF based upon Emtal talc 

products; and (b) in furtherance of the agreement and conspiracy among the BASF and 

Lawyer Perpetrators to commit a pattern of unlawful predicate activities, as defined and 

proscribed in N.J.S.A. § 2C:41-1 et seq., in order to conduct and effectuate BASF’s 

asbestos injury claim defense and operate and manage the BCAD Enterprise. These overt 

acts also serve as predicate to Cahill Gordon’s and its New York attorneys’ violation of 

N.Y. Judicial Law §487, which prohibits New York State attorneys from engaging in 

deceit or collusion towards courts and parties to litigation. 

E. The Gathering and Spoliation of Inculpatory Evidence after the 

Settlement of the Westfall Case. 

128. After the Westfall case was settled, 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. 

129. The Document Retrieval Memorandum directed all Engelhard minerals 

division employees to search for, retrieve, and gather all “all notebooks, duplicate copies 

of notebooks, technical service requests and responses, memoranda and reports” relating 

to operations of Engelhard Minerals Ltd. and Emtal, among other BASF predecessor 

companies. 

130. BASF’s employees were directed by the Document Retrieval 

Memorandum and the BASF Perpetrators to place the documents they gathered in 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 56 of 173 PageID: 1821
57

response to the memorandum in file boxes for discard, and to make the boxes available 

for pick-up on March 16, 1984. 

131. All documentary evidence relating to Engelhard’s asbestos-containing 

talc, was thereafter gathered up, collected by the BASF Perpetrators or their agents, and 

subsequently was either destroyed or secreted away by the BASF Perpetrators, all with 

the knowledge, approval and agreement of the Lawyer Perpetrators. 

132. 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, 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”). 

133. The collection of the documents in March, 1984 was not for legitimate 

record retention purposes and any claim that the collection of the documents on such 

basis is and was pretext and in bad faith on BASF’s part, including Defendants 

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 circumstances that both the BASF Perpetrators and the Lawyer Perpetrators knew 

or foresaw that BASF was, or would be the subject of asbestos injury claims in which it 

was, or would be contended that its talc ore and Emtal talc products contained asbestos 

fibers. Because of this knowledge, BASF had a duty, of which duty the BASF and 

Lawyer Perpetrators were well aware, to preserve evidence and documents relevant to 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 57 of 173 PageID: 1822
58

such asbestos claims that were in BASF’s possession or control. The Lawyer 

Perpetrators as BASF’s national counsel in asbestos matters had a duty to advise and 

assist BASF in fulfilling that duty. 

134. 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, or could in the future asserting 

claims against BASF for injuries caused by asbestos in its talc and talc products. 

135. 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. 

136. The collection and destruction or secreting away of Engelhard’s 

documents in 1984 were parts of the BASF 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. 

137. The collection and destruction or secreting away of Engelhard’s 

documents in 1984 were overt acts in furtherance of the BASF and Lawyer Perpetrators’ 

agreement and conspiracy to mislead, deceive and defraud asbestos claimants and 

asbestos claimant attorneys regarding the viability or merit of asbestos injury claims 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 58 of 173 PageID: 1823
59

against BASF based upon Emtal talc products and in furtherance of the agreement and 

conspiracy among the BASF and Lawyer Perpetrators to commit a pattern of unlawful 

activities as defined and proscribed in N.J.S.A. § 2C:41-1 et seq. in order to conduct and 

effectuate BASF’s asbestos defense. These overt acts also serve as predicate to Cahill 

Gordon’s and its New York attorneys’ violation of N.Y. Judicial Law §487, which 

prohibits New York State attorneys from engaging in deceit or collusion towards courts 

and parties to litigation. 

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

Misleading and Deceiving Asbestos Injury Claimants, Asbestos 

Claimants’ Counsel and Asbestos Courts. 

138. 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 and Lawyer Perpetrators acting directly or through their co-conspirators, 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 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 59 of 173 PageID: 1824
60

139. 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 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 their illegal and illegitimate Fraudulent Asbestos Defense Scheme. 

140. The BCAD Enterprise existed from 1983 or 1984, the exact date being 

presently unknown to Plaintiffs, to at least, 2009. 

141. The BCAD Enterprise was organized to conduct and execute the 

Fraudulent Asbestos Defense Scheme. The parties organizing it, including Dornbusch, 

Hemstock, Halket and Sloane, intended it would continue for the many years to come that 

asbestos claims would be filed. 

142. The BASF 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. 

143. Defendant BASF’s and the BASF Perpetrators’ particular roles, functions 

and activities in the BCAD Enterprise it, acting as aforesaid performed, included: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 60 of 173 PageID: 1825
61

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; 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 61 of 173 PageID: 1826
62

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. 

144. 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; 

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; 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 62 of 173 PageID: 1827
63

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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 63 of 173 PageID: 1828
64

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; 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 64 of 173 PageID: 1829
65

G. Representative Misrepresentations and Material Omissions in 

Furtherance of the Fraudulent Asbestos Defense Scheme 

145. 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. 

146. To purportedly support and corroborate these false and misleading 

representations, the Lawyer Perpetrators, with BASF’s knowledge, authorization and/or 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 65 of 173 PageID: 1830
66

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.; 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 66 of 173 PageID: 1831
67

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 

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. 

147. 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’ 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 67 of 173 PageID: 1832
68

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. 

148. 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 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 68 of 173 PageID: 1833
69

149. 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.” 

150. 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 

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. 

151. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 69 of 173 PageID: 1834
70

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. 

152. 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. 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 70 of 173 PageID: 1835
71

A copy of this letter is appended as Exhibit 13 and is incorporated herein by 

reference. 

153. 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. 

154. On or about August 21, 1989, Cahill Gordon’s Sarner sent another letter 

via Federal Express to the Pennsylvania Tireworker Claimants’ lawyer’s Philadelphia 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 71 of 173 PageID: 1836
72

that copies of it were sent to, inter alia, Defendants Sloane and Dembrow at their New 

York offices. 

155. 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 inculpatory 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 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. 

156. 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 

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. 

157. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 72 of 173 PageID: 1837
73

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 of being assessed sanctions for pursuing a 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 73 of 173 PageID: 1838
74

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). 

158. 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. 

159. 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. 

160. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 74 of 173 PageID: 1839
75

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. 

161. 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. 

162. 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.” 

163. 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 inculpatory 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 75 of 173 PageID: 1840
76

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 inculpatory asbestos claim 

evidence in 1984. These material 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. 

164. 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. 

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). 

165. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 76 of 173 PageID: 1841
77

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”). 

166. 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. 

167. 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. 

168. 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. 

169. 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). 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 77 of 173 PageID: 1842
78

170. 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. 

171. 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. 

172. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 78 of 173 PageID: 1843
79

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. 

173. 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.... 

174. 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 

and inculpatory asbestos claim evidence in 1984. These material 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 79 of 173 PageID: 1844
80

asbestos claimants, and were under a duty to truthfully and fairly answer and provide 

discovery to adverse parties in litigation. 

175. 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. 

176. 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. 

177. 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.... 

*** 

Pita hereby incorporates by reference this preliminary statement into the 

response to each interrogatory. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 80 of 173 PageID: 1845
81

178. 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 inculpatory studies on Engelhard’s talc showing it contained asbestos or 

any of the contrary and inculpatory 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 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. 

179. 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: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 81 of 173 PageID: 1846
82

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 inculpatory 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. 

180. 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. 

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. 

181. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 82 of 173 PageID: 1847
83

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.” 

182. 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. 

183. 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: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 83 of 173 PageID: 1848
84

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.... 

 

184. 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. 

185. 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

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. 

186. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 84 of 173 PageID: 1849
85

187. 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. 

188. 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. 

189. 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: 

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. 

190. The Responses to the Chernick Interrogatories referred to the same three 

purported exculpatory studies on Engelhard’s talc that were provided to the Chernick

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 85 of 173 PageID: 1850
86

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. 

191. 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. 

Response to Interrogatory No. 63: 

No. 

192. 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; 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 86 of 173 PageID: 1851
87

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. 

193. 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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 87 of 173 PageID: 1852
88

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. 

194. 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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 88 of 173 PageID: 1853
89

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. 

195. 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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 89 of 173 PageID: 1854
90

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. 

196. Representative Plaintiffs Williams, Pease, Holley, Ware, Wengerd and/or 

their respective decedents as the case may be, were all represented in asbestos injury 

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. 

197. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 90 of 173 PageID: 1855
91

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. 

198. 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. 

199. 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.” 

200. 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. 

201. 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: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 91 of 173 PageID: 1856
92

...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.... 

 

202. 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.” 

203. 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. 

204. 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 

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.” 

205. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 92 of 173 PageID: 1857
93

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. 

206. 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. 

207. 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: 

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). 

208. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 93 of 173 PageID: 1858
94

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. 

209. 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 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 94 of 173 PageID: 1859
95

210. 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. 

211. 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: 

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). 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 95 of 173 PageID: 1860
96

212. 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. 

213. 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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 96 of 173 PageID: 1861
97

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. 

214. 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 inculpatory asbestos injury 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 information 

and discovery to adverse parties in litigation. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 97 of 173 PageID: 1862
98

215. 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 inculpatory 

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. 

216. 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 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 98 of 173 PageID: 1863
99

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. 

217. 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”). 

A copy of the 2007 Bevan Group 14 Interrogatories is appended as Exhibit 32 and 

incorporated herein by reference. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 99 of 173 PageID: 1864
100

218. 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). 

(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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 100 of 173 PageID: 1865
101

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. 

219. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 101 of 173 PageID: 1866
102

220. 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. 

221. 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. 

222. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 102 of 173 PageID: 1867
103

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. 

223. 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. 

224. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 103 of 173 PageID: 1868
104

225. 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.” 

226. 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 

227. 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. 

228. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 104 of 173 PageID: 1869
105

letter and enclosures to the Bevan Law Firm. A copy of these interrogatory answers is 

appended as Exhibit 37 and incorporated herein by reference. 

229. 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. 

230. 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.

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 105 of 173 PageID: 1870
106

231. 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. 

232. 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: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 106 of 173 PageID: 1871
107

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 

asbestos-containing 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. 

233. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 107 of 173 PageID: 1872
108

circumstances surrounding BASF’s gathering and spoliation of all contrary and 

inculpatory asbestos claim 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. 

234. 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. 

235. 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 

236. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 108 of 173 PageID: 1873
109

development employee, that was taken in connection with an asbestos injury case 

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. 

237. Mr. Swanson was a chemist for Engelhard in Menlo Park, New Jersey. 

238. During his tenure at Engelhard, Swanson conducted experiments and 

assays with talc in his laboratory. He also visited the Johnson Mine. 

239. 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. 

240. 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; 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 109 of 173 PageID: 1874
110

d. That Defendant Hemstock explained to him that the directive to gather up 

the documents had come from BASF’s legal department; 

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. 

241. 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”). 

242. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 110 of 173 PageID: 1875
111

243. 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. 

244. 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. 

245. 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. 

246. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 111 of 173 PageID: 1876
112

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 

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. 

247. 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. 

248. 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. 

249. Plaintiffs in support of their claims are seeking production of the 

documents held in escrow. 

250. 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: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 112 of 173 PageID: 1877
113

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; 

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. 

251. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 113 of 173 PageID: 1878
114

252. Based upon information and belief, BASF terminated Cahill Gordon as its 

national counsel in or about 2009 or 2010. 

253. 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 

how the BASF Perpetrators and the Lawyer Perpetrators used it to repeatedly mislead and 

deceive asbestos injury claimants, their counsel and presiding courts. 

254. 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. 

255. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 114 of 173 PageID: 1879
115

256. The evidence spoliated by the BASF Perpetrators and the Lawyer 

Perpetrators includes the Engelhard internal lab notebooks which 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 assay data regarding the composition of the Emtal talc 

including but limited to the asbestos content of the Emtal talc. 

257. 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 

258. 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). 

259. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 115 of 173 PageID: 1880
116

260. 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 

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). 

261. 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 

262. 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). 

263. In her deposition on May 25, 2010, Ms. Poole admitted as a designee of 

BASF: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 116 of 173 PageID: 1881
117

a. That there are documents which show the existence of asbestos in Emtal 

talc (See Exhibit 41 at pg. 185-190); 

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). 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 117 of 173 PageID: 1882
118

K. Plaintiffs Learn They and Other Asbestos Claimants Similarly 

Situated Were Victimized and Harmed by the Fraudulent Asbestos 

Defense Scheme 

264. 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. 

265. 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. 

266. 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. 

267. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 118 of 173 PageID: 1883
119

268. As a direct and proximate result of Defendants’ acts, omissions and 

activities, including the BASF and Lawyer Perpetrators’ pattern of unlawful activities 

that violate N.J.S.A. § 2C: 41-1 et seq. and Cahill Gordon’s violation of N.Y. Judiciary 

Law § 487, 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. 

269. 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. 

270. 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, including activities that constituted a pattern of 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 119 of 173 PageID: 1884
120

activities and conduct that are proscribed and constitute predicate acts or violations under 

N.J.S.A. § 2C:41-1, et seq. 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 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. 

271. 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. 

272. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 120 of 173 PageID: 1885
121

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 

execution of the subsequent misrepresentation and fraudulent material misrepresentations 

relating to or based upon the spoliation of documents and evidence. 

273. 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. 

274. 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. 

275. 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, 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 121 of 173 PageID: 1886
122

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 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 122 of 173 PageID: 1887
123

276. 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. 

277. 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 

278. 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 talc products and sustained an asbestos related injury, or who have or had 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 123 of 173 PageID: 1888
124

the right to claim damages derivatively based upon such exposed person’s 

asbestos related injury. 

For purposes of this class definition BASF 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”) 

 

279. Plaintiffs are members of the Class that they seek to represent. 

280. 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. 

281. 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 herein is for the benefit of Plaintiffs and members 

of the putative Class. 

282. Class Members are so numerous that their individual joinder is 

impracticable. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 124 of 173 PageID: 1889
125

283. 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 spoliated material evidence relating to Class Members’ 

underlying asbestos claims? 

b) Whether BASF and Cahill Gordon, and their respective employees or 

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? 

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? 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 125 of 173 PageID: 1890
126

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 Defendants execution of the Fraudulent Asbestos Defense 

Scheme was a fraud upon of the court of such nature, degree and extent 

warranting the Court to take jurisdiction and implement curative measures 

restoring class members and BASF back to the status quo ante the 

commission of the Fraudulent Asbestos Defense Scheme. 

j) Whether Cahill Gordon and its lawyers under the facts and circumstances 

of this case violated N.Y. Judiciary Code §487 which prohibits attorneys 

from committing deceit or collusion, or consenting to any deceit or 

collusion, with intent to deceive the court or any party? 

k) Whether any of BASF’s in-house counsel under the facts and 

circumstances of this case violated N.Y. Judiciary Code §487 which 

prohibits attorneys or counsel from committing deceit or collusion, or 

consenting to any deceit or collusion, with intent to deceive the court or 

any party? 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 126 of 173 PageID: 1891
127

l) Whether all or some of the Defendants conspired or acted in concert with 

other Defendants to commit the Fraudulent Asbestos Defense Scheme,? 

m) 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? 

n) Whether Defendants are liable to the Class for punitive damages and other 

available relief under New Jersey’ for committing spoliation and 

fraudulent concealment of evidence or conspiring to do so? 

o) Whether the Defendants utilized the BCAD Enterprise to conduct, execute 

and manage BASF’s asbestos claim defense? 

p) Whether the BASF Perpetrators and/or the Lawyer Perpetrators obstructed 

justice in violation of 18 U.S.C. § 1503 (Obstruction of Justice), 

committed Mail Fraud in violation of 18 U.S.C. § 1341, or committed 

Wire Fraud in violation of 18 U.S.C. § 1343 in the execution of the 

Fraudulent Asbestos Defense Scheme? 

q) Whether the BASF Perpetrators and/or Lawyer Perpetrators conducted or 

participated, directly or indirectly, in the conduct of the BCAD Enterprise 

through a pattern of unlawful activity, as defined under N.J.S.A. § 2C:41-

1? 

r) Whether the BASF Perpetrators and/or Lawyer Perpetrators violated 

N.J.S.A. § 2C:41-1 et seq.? 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 127 of 173 PageID: 1892
128

s) Whether in light of the extraordinary misconduct giving rise to this case 

Plaintiff’s and the class are entitled to equitable relief correcting the harms 

caused by the BASF and/or Lawyer Perpetrators violations of N.J.S.A. § 

2C:41-1 et seq.? 

t) Whether in light of the extraordinary misconduct giving rise to this case 

BASF and/or Lawyer Perpetrators should be required to render an 

accounting of and then disgorge the benefits they reaped by their 

violations of N.J.S.A. § 2C:41-1 et seq.? 

u) Whether Plaintiffs and the Class are entitled to 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? 

v) Whether Defendants committed obstructions of justice or a fraud upon the 

court by its commission of the Fraudulent Asbestos Defense Scheme? 

w) Whether by their wrongful acts, activities and omissions Defendants 

unjustly enriched themselves at the expense and to the detriment of 

Plaintiffs and other Class Members? 

x) 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 128 of 173 PageID: 1893
129

to the passage of time such as loss of witnesses and documentation needed 

to establish a Class Members’ underlying asbestos injury claim? 

y) 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? 

z) Whether Class Members are entitled the restitution of any moneys or 

property unlawfully obtained or retained by any person found to be in 

violation of N.J.S.A. § 2C:41-1 et seq.? 

aa) Whether Defendants should be required to disgorge any moneys that are 

found to unjustly enrich them or were illegally earned? 

bb) Whether assessment of punitive damages against the Defendants is 

warranted and just under the circumstances? 

cc) 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? 

dd) Whether in light of the extraordinary misconduct giving rise to this case, 

an immediate publication notice to the Class apprising them of the alleged 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 129 of 173 PageID: 1894
130

circumstances and their legal rights at Defendants’ expense is warranted 

and should be ordered as preliminary injunctive relief? 

ee) 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? 

ff) 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. 

284. 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’ 

along with N.Y. Judiciary Law §487. Individual questions, if any, pale in comparison to 

the numerous common questions that predominate. 

285. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 130 of 173 PageID: 1895
131

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 non existence of any evidence that these products contained asbestos. 

286. 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. . 

287. 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. 

288. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 131 of 173 PageID: 1896
132

would establish incompatible standards of conduct for the party opposing the class, the 

Defendants herein. 

289. 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. 

290. 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 

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 of N.J.S.A. § 2C:41-1 et seq., New Jersey common-law and 

N.Y. Judiciary law §487 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 132 of 173 PageID: 1897
133

upon which the Class Members’ claims are based. To the extent N.Y. Judiciary Law 

§487 applies to all or part of the putative class, it provides a complimentary and 

adjunct basis for providing relief to all or some of the class. A nationwide Class can 

therefore be easily managed by the Court and the parties; 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. 

VII. CAUSES OF ACTION 

COUNT I 

VIOLATION OF N.J.S.A. § 2C:41-2c 

(Against BASF Perpetrators and the Lawyer Perpetrators) 

291. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

292. Each of the Defendants comprising the BASF Perpetrators (BASF, Halket, 

Dornbusch and Hemstock) and the Lawyer Perpetrators (Cahill LLP, Cahill Partnership, 

Sloane, Martin and Dembrow) is a “person” within the meaning of N.J.S.A. § 2C:41-1b. 

293. The BCAD Enterprise is an association-in-fact within the meaning of 

N.J.S.A. § 2C:41-1, consisting of: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 133 of 173 PageID: 1898
134

a. The BASF Perpetrators, as well as from time to time, other BASF 

employees and agents who may or may not have been aware or knowledgeable of the 

Fraudulent Asbestos Defense Scheme; and, 

b. The Lawyer Perpetrators, as well as from time to time, other Cahill 

Gordon partners, shareholders, members, associates and employees who may or may 

not have been aware or knowledgeable of the Fraudulent Asbestos Defense Scheme. 

294. The BASF Perpetrators and the Lawyer Perpetrators are “persons” as 

defined N.J.S.A. § 2C:41-1 who are distinct from the BCAD Enterprise. 

295. The BASF Perpetrators and Lawyer Perpetrators created and maintained 

the BCAD Enterprise to manage and conduct BASF’s and the BASF Predecessor 

Companies’ asbestos injury claim administration and defense. It was, however, corrupted 

by the BASF Perpetrators and Lawyer Perpetrators through their operation of it through a 

continuous pattern of activities and conduct constituting predicate acts or violations under 

N.J.S.A. § 2C:41-1 et seq. which they devised and executed in order to end and/or ward 

off asbestos injury claims being filed or successfully maintained against BASF and the 

BASF Predecessor Companies. 

296. The BCAD Enterprise was an ongoing organization that functioned as a 

continuing unit or association for at least 25 years – 1983 or 1984 to 2009, if not longer. 

297. The BASF Perpetrators and Lawyer Perpetrators used the BCAD 

Enterprise for two purposes: to lawfully manage and defend asbestos injury lawsuits filed 

throughout the country, as well as other asbestos injury claims against BASF; and 2) to 

unlawfully conduct its operations through the suppression and spoliation of inculpatory 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 134 of 173 PageID: 1899
135

evidence and documents relating to asbestos in BASF’s talc ore or talc products, and/or 

through false and/or fraudulent misrepresentations and material omissions relating to the 

existence of asbestos in BASF’s talc ore or talc products which were conveyed or 

transmitted through means of telephone and telefax, the U.S. Mail, the internet and/or 

private or commercial interstate carriers such as Federal Express; all as set forth above. 

Any and all of these actions or material omissions were committed to obstruct justice or 

as a part of an endeavor to obstruct justice. 

298. Each of the Defendants comprising the BASF Perpetrators and the Lawyer 

Perpetrators, acting as set forth above, thereby conducted the affairs of the BCAD 

Enterprise through a pattern of activity or conduct proscribed under N.J.S.A. § 2C:41-1, 

et seq., and thereby violated N.J.S.A. § 2C:41-2c. 

299. The BCAD Enterprise enabled and facilitated the BASF Perpetrators’ and 

the Lawyer Perpetrators’ successful and secret execution of the Fraudulent Asbestos 

Defense Scheme continuously for over twenty-five (25) years. 

300. The BCAD Enterprise had a chain of command structure and was 

organized into groupings of participants or actors with specific roles, functions and 

duties. Cahill Gordon, until sometime in 2009 or 2010, the exact time not being known 

presently, served as BASF’s national asbestos defense counsel and in such capacity 

managed and oversaw the defense of all asbestos claims in the United States involving 

BASF and its predecessor companies. In this capacity Cahill Gordon shared 

responsibility with the BASF Perpetrators for devising defense strategy and tactics. 

Cahill Gordon was then responsible for uniformly executing that strategy throughout the 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 135 of 173 PageID: 1900
136

United States, which task and role included instructing local defense counsel who were 

directly interacting with asbestos injury claimants’ counsel on the strategy and tactics to 

be employed on behalf of BASF or its predecessor. Cahill Gordon additionally was 

responsible for providing local counsel with materials to execute same. Cahill Gordon 

also authored or procured from third parties or BASF employees the false and misleading 

exculpatory documents and reports routinely provided to and used by local defense 

counsel when dealing with asbestos injury claimants in BASF’s asbestos defense, such as 

the Ashton Affidavit, Pooley Report, and Carter Affidavits. Cahill Gordon also prepared 

and supplied to such local defense counsel the templates for requests for voluntary 

dismissals letters and for interrogatory answers which referred to these false and 

misleading exculpatory documents. The local defense firms reported to both Cahill 

Gordon and BASF’s in-house counsel. BASF employees provided affidavits and 

testimony for the defense when needed, and the BASF Perpetrators controlled the 

information provided to such employees in connection with these activities. The BASF 

perpetrators also controlled the BCAD Enterprise via its funding of its operations directly 

and/or indirectly through its insurance coverage it owned and paid for, as well as by 

BASF and Engelhard’s ability to retain or discharge Cahill Gordon or any of the local 

law firm’s representing it or them. 

301. Each of the participants in the BCAD Enterprise received substantial 

revenue or economic benefit from the BCAD Enterprise. Each member of the BCAD 

Enterprise also benefited from the existence of the other parts or participants in the 

enterprise. Cahill Gordon earned lucrative professional fees for numerous years for its 

activities associated with the BCAD Enterprise, including activities that constituted a 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 136 of 173 PageID: 1901
137

pattern of activities and conduct that are proscribed and constitute predicate acts or 

violations under N.J.S.A. § 2C:41-1, et seq. 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 

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 BCAD Enterprise. Individual BASF employees involved 

in the asbestos claims defense were able to maintain their employment and earn favorable 

employment reviews based on the handling or participation in BASF’s asbestos injury 

claims management. All participants in the management of the BCAD Enterprise also 

gained and were benefitted by the BCAD Enterprise’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. 

302. The BCAD Enterprise engaged in and affected New Jersey and interstate 

trade and commerce. It handled and managed the administration and defense of 

thousands of asbestos injury claims across the United States. It utilized insurance 

coverage underwritten by national insurance carriers to fund, in part, its operations. It 

regularly utilized interstate communication systems, including the U.S. Mail, interstate 

telephone/telefax, internet and private or commercial interstate carriers, such as Federal 

Express, to conduct its operations as set forth above. 

303. The BASF Perpetrators and Lawyer Perpetrators exerted control over the 

BCAD Enterprise during their tenure and association with it.. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 137 of 173 PageID: 1902
138

304. The BASF Perpetrators and Lawyer Perpetrators have conducted and 

managed the BCAD Enterprise’s affairs through a pattern of acts and activities that are 

indictable under 18 U.S.C. § 1503 (Obstruction of Justice), 18 U.S.C. § 1341 (mail fraud) 

and 18 U.S.C. § 1343 (wire fraud), all of which are defined and proscribed unlawful acts, 

activities or conduct under N.J.S.A. § 2C:41-1a(2) and which serve as predicate acts in 

violation of N.J.S.A. § 2C:41-2c (“predicate acts”). 

305. The BASF Perpetrators and Lawyer Perpetrators acts of obstruction of 

justice include the spoliation of material evidence and documents as described above, 

their cover-up and concealment of the spoliation of material evidence and documents as 

described above, and/or their misrepresentation and material omissions of fact relating to: 

(a) BASF-Engelhard’s claim of “no asbestos” being present in BASF’s talc ore or talc 

products and/or (b) the non-existence of any evidence establishing the presence of 

asbestos in BASF’s talc ore or talc products in verified discovery, in dismissal motions 

filed with courts, and in law suit related correspondence requesting voluntary dismissals, 

as described above. 

306. The BASF Perpetrators’ and Lawyer Perpetrators’ use of the mails, wires 

and/or private or commercial interstate carriers to perpetrate their Fraudulent Asbestos 

Defense Scheme through the BCAD Enterprise involved hundreds, if not thousands, of 

mail, wire or private or commercial interstate carrier communications, including those set 

forth above, which communications constitute predicate acts and unlawful activities 

under N.J.S.A. § 2C:41-1a(2), including, but not limited to those mailings, interstate 

carrier mailings and wire communications which directly or indirectly: 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 138 of 173 PageID: 1903
139

a. Made and transmitted fraudulent misrepresentations and material 

omissions of information and fact to asbestos injury claimants and/or their counsel 

and/ or courts in which it was falsely and deceptively represented to asbestos injury 

claimants and/or their counsel (and when applicable, courts) that BASF’s talc ore or 

talc products did not contain asbestos fibers, and/or that there was not any evidence 

that BASF’s talc ore or talc products contained asbestos; 

b. Submitted false and misleading sworn statements in the form of affidavits 

and verified interrogatory answers to asbestos injury claimants, their counsel and/or 

presiding courts that that BASF’s talc ore or talc products did not contain asbestos 

fibers and/or that there was not any evidence that BASF’s talc ore or talc products 

contained asbestos; 

c. Served and/or filed motions asserting false, deceitful and fraudulent 

representations and statements that BASF’s talc ore or talc products did not contain 

asbestos fibers and/or that there was not any evidence that in BASF’s talc ore or talc 

products contained asbestos; 

d. Transmitted and received back releases, settlement agreements and 

notices, stipulations or consent orders for dismissal or discontinuance fraudulently 

obtained from asbestos injury claimants and/or their counsel; and/or, 

e. Transmitted or received professional fees and cost reimbursements 

relating to the Fraudulent Asbestos Defense Scheme. 

307. In addition, in furtherance of BCAD Enterprise’s fraudulent and unlawful 

conduct BASF personnel in New Jersey communicated by United States mail, private or 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 139 of 173 PageID: 1904
140

commercial interstate carriers, telephone, and facsimile with Cahill Gordon in New York, 

as well with various local BASF asbestos defense counsel and various asbestos injury 

claimants’ counsel around the country. 

308. The BASF Perpetrators’ and Lawyer Perpetrators’ activities and conduct 

that related to the BCAD Enterprise amounted to a longstanding common course and 

pattern of conduct intended to deceive and harm Plaintiffs and Class Members that are 

proscribed predicate acts under N.J.S.A. § 2C:41-1. Each such activity was related, had 

similar purposes, involved the same or similar participants and methods of commission, 

and had similar results affecting similar victims, including Plaintiffs and Class Members. 

309. The BASF Perpetrators’ unlawful activities and predicate acts violating 

N.J.S.A. § 2C:41-2(c) still remain a part of BASF’s ongoing business affairs and 

constitute a continuing threat to the property of Class Members in view of BASF’s 

spoliation of material evidence relating to Class Members’ underlying asbestos claims 

and BASF’s subsequent longstanding course of misrepresentations about the non 

existence of asbestos in BASF’s talc ore or talc products. BASF’s pattern and practice of 

misrepresentations continues unabated. As described above, BASF continued to attempt 

to misrepresent the asbestos content of BASF’s talc ore or talc products in the Paduano

case even after the spoliation and the fraudulent misrepresentations was uncovered. 

Subsequently, on or about December 22, 2010, BASF’s local counsel, in the New York 

Supreme Court Chernick case mentioned above sought and obtained from the defrauded 

Chernick claimants’ counsel a replacement consent “No Opposition Summary Judgment 

Motion and Order” for filing in order to obtain a judicial dismissal with prejudice. It did 

so without making any disclosures, corrections or retractions regarding previous 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 140 of 173 PageID: 1905
141

misrepresentations and material omissions made years earlier to procure agreement to the 

dismissal. That fraudulently obtained consent order was then submitted to the New York 

Supreme Court by BASF’s local counsel on or about January 18, 2011 and, in course, 

was approved, executed and entered by said Court on or about February 3, 2011. 

310. Defendants’ predicate acts of mailing by U.S. Mail or private/commercial 

interstate carrier and/or by transmitting via wire instrumentalities the misleading material 

representations and omissions of fact in furtherance of the Fraudulent Asbestos Defense 

Scheme constitutes a pattern of unlawful conduct and predicate acts under N.J.S.A. § 

2C:41-1d, which in turn violates N.J.S.A. § 2C:41-2c, based upon both the relationship 

between the acts and the continuity over the period of time of the acts. The relationship 

was related because the predicate acts were connected to each other in furtherance of the 

Fraudulent Asbestos Defense Scheme. Continuity was reflected by both the long and 

repeated nature of the mailed, telefaxed and telephoned misrepresentations and material 

omissions during and in furtherance of the Fraudulent Asbestos Defense Scheme and the 

threat of similar acts occurring in the future. The threat was related by the lengthy 

continuing and ongoing nature of the predicate acts. 

311. Defendants’ unlawful and predicate acts were related, because they: (a) 

reflected the same purpose or goal (obstructing, impeding, impairing, disrupting and/or 

otherwise defeating the rights of asbestos litigation claimants to full fair and just 

compensation as well as their Constitutional right to a fair, honest and just judicial 

proceeding in suits 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); (b) obtained the same results (the warding off and 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 141 of 173 PageID: 1906
142

termination of asbestos suits with no or only nominal/token consideration, if any, paid to 

asbestos claimants); (c) involved the same participants (the BASF Perpetrators’, Lawyer 

Perpetrators’, asbestos claimants and their counsel); (d) targeted the same victims 

(Plaintiffs and the Class Members); and, (e) employed the same methods and means 

(modus operandi) of commission (the Fraudulent Asbestos Defense Scheme and other 

acts described in this Complaint). The predicate acts were interrelated and not isolated 

events since they were carried out for the same purposes in a continuous manner and in 

secret over a substantial period of time- at least twenty-five (25) years. 

312. Plaintiffs and Class Members have been injured in their business and 

property by reason of the violations of N.J.S.A. § 2C:41-2c in that they 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 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. In 

each instance Plaintiffs and member of the Class would not have done so had the BASF 

Perpetrators and Lawyer Perpetrators not engaged in their patterns of unlawful activity. 

313. The BASF Perpetrators’ and Lawyer Perpetrators’ above-described 

unlawful activity directly and proximately caused Plaintiffs and Class Members’ to 

sustain unique ascertainable personal property losses and damage in the nature of the 

wrongful taking or deprivation of their asbestos injury claim against BASF and as well 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 142 of 173 PageID: 1907
143

the taking and deprivation of Plaintiffs’ and each class members’ constitutional right to a 

fair, honest and just judicial proceeding. 

314. Plaintiffs and the class have been irreparably harmed by the defendants’ 

wrongful taking, impairment and/or deprivation of their property rights at issue through 

conducting the affairs of the BCAD Enterprise in violation of N.J.S.A. § 2C:41-2c for 

which there is no adequate remedy at law given the extraordinary misconduct of the 

defendants and the circumstances they created thereby. Equitable relief is appropriate in 

the nature of, inter alia, (a) declaratory and injunctive relief restoring Plaintiff and class 

members back to the status quo ante the commission of the Fraudulent Asbestos Defense 

Scheme so they can each make an informed decision regarding any further pursuit of 

their legal remedies and, should Plaintiff or a class member then elect to proceed with a 

damages claim against BASF and any of the defendants, further enjoining Defendants 

from asserting any defenses that would bar or limit the claim such as res judicata, statute 

of limitations, repose limits, laches, judgment merger, release, settlement, collateral 

estoppels, accord and satisfaction and/or unclean hands; (b) declaratory and injunctive 

relief curing, as needed and just, any evidentiary harm and proof impediments 

Defendants’ egregious misconduct is responsible for creating as more particularly set 

forth below; (2) a decree and injunction imposing a constructive trust upon Defendants’ 

property pending their rendering accountings to the Court of the benefits they unjustly 

reaped as a result of their spoliation and fraudulent concealment; and (d) a decree 

ordering disgorgement of such benefits 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 143 of 173 PageID: 1908
144

315. By virtue of these violations of N.J.S.A. § 2C:41-2c and injury to 

Plaintiffs’ property rights, the BASF Perpetrators’ and Lawyer Perpetrators are jointly 

and severally liable to Plaintiffs and Class members for such remedy and relief the Court 

deems just and available under N.J.S.A. § 2C:41-4, including costs of suit and 

investigation and this litigation. 

COUNT II 

VIOLATION OF N.J.S.A. § 2C:41-2D BY 

CONSPIRING TO VIOLATE N.J.S.A. § 2C:41-2C 

(Against BASF Perpetrators and the Lawyer Perpetrators) 

316. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

317. Section N.J.S.A. § 2C:41-2d provides that it “shall be unlawful for any 

person to conspire as defined by N.J.S. 2C:5-2 to violate any of the provisions of this 

section.” N.J.S.A. § 2C:41-2c is one such provision. 

318. The BASF Perpetrators and Lawyer Perpetrators have violated N.J.S.A. § 

2C:41-2d by agreeing to and thereby conspiring to violate N.J.S.A. § 2C:41-2c. 

319. The object of the conspiracy has been, and remains to this date, to (a) 

conduct or participate in, directly or indirectly, the conduct of the affairs of the BCAD 

Enterprise through a pattern of unlawful activity as described above; and (b) take or 

perform all actions and measures as are necessary to conceal the fraudulent acts, 

misrepresentations and suppressions of evidence that had been committed or were being 

committed in furtherance of the Fraudulent Asbestos Defense Scheme so that the scheme 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 144 of 173 PageID: 1909
145

remained unknown by the public, the judiciary, professional regulators and law 

enforcement officials. 

320. The co-conspirators, the BASF Perpetrators and Lawyer Perpetrators, have 

engaged in, or have aided and abetted the commission of, numerous overt and fraudulent 

predicate acts in furtherance of the conspiracy, including material misrepresentations and 

omissions designed to defraud Plaintiffs and Class Members of their asbestos injury 

claims as described above. 

321. The nature of the above-described co-conspirators' acts, material 

misrepresentations, and omissions in furtherance of the conspiracy gives rise to an 

inference that the BASF Perpetrators and Lawyer Perpetrators not only agreed to the 

objective of an N.J.S.A. § 2C:41-2d violation by conspiring to violate N.J.S.A. § 2C:41-

2c, but they 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. 

322. Plaintiffs and the class have been irreparably harmed by the defendant’s 

wrongful taking, impairment and/or deprivation of their property rights at issue through 

the overt acts and the predicate acts in furtherance of violating N.J.S.A. § 2C:41-2d by 

conspiring to violate N.J.S.A. § 2C:41-2c for which there is no adequate remedy at law 

given the extraordinary misconduct of the defendants and the circumstances they created 

thereby. Equitable relief is appropriate in the nature of, inter alia, (a) declaratory and 

injunctive relief restoring Plaintiff and class members back to the status quo ante the 

commission of the Fraudulent Asbestos Defense Scheme so they can each make an 

informed decision regarding any further pursuit of their legal remedies and, should 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 145 of 173 PageID: 1910
146

Plaintiff or a class member then elect to proceed with a damages claim against BASF and 

any of the defendants, further enjoining Defendants from asserting any defenses that 

would bar or limit the claim such as res judicata, statute of limitations, repose limits, 

laches, judgment merger, release, settlement, collateral estoppels, accord and satisfaction 

and/or unclean hands; (b) declaratory and injunctive relief curing, as needed and just, 

any evidentiary harm and proof impediments Defendants’ egregious misconduct is 

responsible for creating as more particularly set forth below; (2) a decree and injunction 

imposing a constructive trust upon Defendants’ property pending their rendering 

accountings to the Court of the benefits they unjustly reaped as a result of their spoliation 

and fraudulent concealment; and (d) a decree ordering disgorgement of such benefits 

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 

FRAUDULENT CONCEALMENT - SPOLIATION 

(Against All Defendants) 

323. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

324. 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 146 of 173 PageID: 1911
147

325. 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’s predecessor companies in the future would be sued by other 

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 talc products made with same contained asbestos which injured them. 

326. 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 

compound products, automotive body repair filler products, the latent and progressive 

nature of asbestos disease, and the state of asbestos litigation at that time, the BASF 

Perpetrators and Lawyer Perpetrators were aware and understood that it was foreseeable 

and likely that BASF’s 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. 

327. In view of their knowledge 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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 147 of 173 PageID: 1912
148

328. At all times material herein, including March 7, 1984, in view of their 

knowledge 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 

Perpetrators were also under a duty to not aid and abet BASF and its predecessors’ 

violation of its or their duty to preserve evidence. 

329. 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. 

330. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 148 of 173 PageID: 1913
149

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. 

331. At all times material herein, the Lawyer Perpetrators, as counsel to BASF 

and the BASF Predecessor Companies in asbestos injury litigation matters, and as 

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, 

as well as N.Y. Judiciary Law §487 (prohibiting attorney misconduct towards courts and 

parties in nature of deceit and collusion) 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. 

332. As set forth above, and in violation of their duties regarding the 

preservation of evidence, beginning on or about 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 149 of 173 PageID: 1914
150

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. 

333. 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 

companies possessed material evidence relating to Plaintiffs’ and Class Members’ 

underlying asbestos injury claims in its or their possession, including evidence and 

corporate knowledge that BASF’s and its predecessor companies’ talc ore and talc 

products contained asbestos, including that developed in the Westfall case’s discovery. 

334. 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. 

335. Sometime in and around 1983 or 1984, the exact date being presently 

unknown to Plaintiffs, the BASF Perpetrators and the Lawyer Perpetrators agreed and 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 150 of 173 PageID: 1915
151

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. 

336. 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. 

337. 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. 

338. As the direct, proximate and naturally occurring result of the above 

described deliberate gathering and withholding, destruction and/or concealment of 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 151 of 173 PageID: 1916
152

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 

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. 

339. As a 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. 

340. 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, and/or the expenses and costs 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 152 of 173 PageID: 1917
153

incurred in the effort to replace, locate, or identify evidence, any and all of which 

Plaintiffs and the members of the Class would not otherwise have suffered or incurred. 

341. 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 

given the extraordinary misconduct of the defendants and the circumstances they created 

thereby. Equitable relief, is appropriate in the nature of, inter alia, (a) declaratory and 

injunctive relief restoring Plaintiff and class members back to the status quo ante the 

commission of the Fraudulent Asbestos Defense Scheme so they can each make an 

informed decision regarding any further pursuit of their legal remedies and, should 

Plaintiff or a class member then elect to proceed with a damages claim against BASF and 

any of the defendants, further enjoining Defendants from asserting any defenses that 

would bar or limit the claim such as res judicata, statute of limitations, repose limits, 

laches, judgment merger, release, settlement, collateral estoppels, accord and satisfaction 

and/or unclean hands; (b) declaratory and injunctive relief curing, as needed and just, 

any evidentiary harm and proof impediments Defendants’ egregious misconduct is 

responsible for creating as more particularly set forth below; (c) a decree and injunction 

imposing a constructive trust upon Defendants’ property pending their rendering 

accountings to the Court of the benefits they unjustly reaped as a result of their spoliation 

and fraudulent concealment; and (d) a decree ordering disgorgement of such benefits 

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. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 153 of 173 PageID: 1918
154

342. In addition to the forgoing equitable relief, and incident thereto, Plaintiffs 

and members of the class are entitled to an assessment of punitive damages against all 

Defendants under the Law of New Jersey wherein 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 IV 

 FRAUD AND DECEIT 

(Against All Defendants) 

343. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

344. 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. 

345. Each such representation was false and misleading at the time it was 

made. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 154 of 173 PageID: 1919
155

346. Defendants, acting as aforesaid, knew each representation was false and 

misleading or made the representation in reckless disregard as to its truth or falsity. 

347. 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. 

348. 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. 

349. 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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 155 of 173 PageID: 1920
156

BASF Perpetrators’ gathered and then withheld, concealed and destroyed material 

evidence relating to Plaintiffs’ and Class Members’ underlying asbestos injury claims. 

350. 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. 

351. 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. 

352. 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. 

353. Plaintiffs and members of the Class, as did their counsel, naturally, 

reasonably and detrimentally relied upon the above misrepresentations and omissions 

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 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 156 of 173 PageID: 1921
157

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. 

354. 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. Equitable relief, is appropriate in the nature of, inter alia, (a) declaratory 

and injunctive relief restoring Plaintiff and class members back to the status quo ante 

the commission of the Fraudulent Asbestos Defense Scheme so they can each make an 

informed decision regarding any further pursuit of their legal remedies and, should 

Plaintiff or a class member then elect to proceed with a damages claim against BASF and 

any of the defendants, further enjoining Defendants from asserting any defenses that 

would bar or limit the claim such as res judicata, statute of limitations, repose limits, 

laches, judgment merger, release, settlement, collateral estoppels, accord and satisfaction 

and/or unclean hands; (b) declaratory and injunctive relief curing, as needed and just, 

any evidentiary harm and proof impediments Defendants’ egregious misconduct is 

responsible for creating as more particularly set forth below; (c) a decree and injunction 

imposing a constructive trust upon Defendants’ property pending their rendering 

accountings to the Court of the benefits they unjustly reaped as a result of their spoliation 

and fraudulent concealment; and (d) a decree ordering disgorgement of such benefits 

revealed in the accounting which, in all equity and conscious of the Court, Defendants 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 157 of 173 PageID: 1922
158

should not retain under the circumstances, together with an equitable distribution of such 

disgorgement. 

COUNT V

FRAUD UPON THE COURT 

(Against All Defendants) 

355. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

356. Defendants’ commission of the Fraudulent Asbestos Defense Scheme on 

behalf of BASF over two decades of time set forth above not only inflicted harm and 

grave injustice upon Plaintiffs and members of the Class, but also was a gross and 

egregious fraud and assault upon every presiding asbestos court and administrative 

adjudicative body in which an asbestos injury claim involving BASF or its predecessors 

was pending, including the asbestos multi-district litigation court, the numerous state 

courts systems with specialized asbestos adjudication programs, and workers 

compensation board and commissions. 

357. BASF by and through officers of the court, its in-house attorneys 

(including Defendants Dornbush and Halket) and its outside attorneys (including 

national counsel, Cahill Gordon), as set forth above, spoliated evidence and then 

flagrantly and repeatedly had BASF, acting through its corporate representatives and 

litigation attorneys, falsely represent in both sworn and sworn unsworn documents and 

statements to litigants and, directly and indirectly through parties, to the presiding courts 

that BASF’s talc ore and talc products did not contain asbestos and there was no evidence 

that its talc ore or products contained asbestos when in fact, as they knew — since they 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 158 of 173 PageID: 1923
159

had gathered and stored and/or destroyed it — there was evidence that it contained 

asbestos. Further, BASF’s attorneys then procured expert testimony that was improperly 

and fraudulently biased in BASF’s favor by withholding positive finding asbestos test 

results, and then compounded the false and misleading expert opinion by depriving 

claimants of the data and information needed to challenge and impeach the self-serving 

expert opinion. BASF’s and its attorney’s conduct in these regards was not an accident, 

was not a mistake, and was not an inadvertent failure on their part to locate or list a 

document. From their involvement in the Westfall case BASF’s in-house and national 

counsel were fully cognizant and aware that there was inculpating evidence showing 

BASF’s talc ore and products contained asbestos. Nevertheless, BASF’s attorney’s 

consciously and deliberately spoliated that evidence and then had BASF lie outright in 

pending asbestos case after case that BASF’s talc ore and product did not contain 

asbestos and there was not any evidence it did. 

358. BASF’s counsel’s deliberate and systematic misconduct set forth above 

strikes at the very heart of the judicial administration process — the foundational 

principles of candor and good faith compliance with the rules of court. These core 

principles of the justice system require parties and their counsel to honestly and truthfully 

comply with discovery obligations and not outright lie to its adversary about key material 

facts at issue, destroy or secret away material evidence, or procure and submit biased and 

false expert opinions made possible by the spoliation of evidence; all of which happened 

here. 

359. Under these circumstances the Court in all equity and good conscious, 

should exercise its inherent power to relieve parties of the injustice of fraud upon the 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 159 of 173 PageID: 1924
160

court and not let BASF’s continue to enjoy the benefits it obtained and received thorough 

its attorney’s fraud upon the court on its behalf. 

360. Plaintiffs and the class have been irreparably harmed by the defendants’ 

fraud upon the court for which there is no adequate remedy at law given the extraordinary 

misconduct of the defendants and the circumstances they created thereby. Equitable relief 

is appropriate in the nature of, inter alia, (a) declaratory and injunctive relief restoring 

Plaintiff and class members back to the status quo ante the commission of the Fraudulent 

Asbestos Defense Scheme so they can each make an informed decision regarding any 

further pursuit of their legal remedies, and, should Plaintiff or a class member then elect 

to proceed with a damages claim against BASF and any of the defendants, further 

enjoining Defendants from asserting any defenses that would bar or limit the claim such 

as res judicata, statute of limitations, repose limits, laches, judgment merger, release, 

settlement, collateral estoppels, accord and satisfaction and/or unclean hands; and (b) 

declaratory and injunctive relief curing, as needed and just, any evidentiary harm and 

proof impediments Defendants’ egregious misconduct is responsible for creating as more 

particularly set forth below. 

COUNT VI 

VIOLATION OF N.Y JUDICIARY LAW §487 

(Against Lawyer Perpetrators and John Doe Lawyers 1 to 500) 

361. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 160 of 173 PageID: 1925
161

362. As New York attorneys, Cahill Gordon and its New York admitted 

lawyers assigned responsibility for handling and managing BASF’s asbestos defense, 

such as Defendant Sloane, together with Fictitious Defendants identified as John Doe 

Lawyers 1 to 500, were at all times material herein subject to the provisions of N.Y 

JUDICIARY LAW §487. 

363. N.Y JUDICIARY LAW §487 (Misconduct by attorney) provides: 

An attorney or counselor who: 

 1. Is guilty of any deceit or collusion, or consents to any deceit or 

collusion, with intent to deceive the court or any party; or, 

 

 2. Willfully delays his client's suit with a view to his own gain; or, 

wilfully receives any money or allowance for or on account of any money 

which he has not laid out, or becomes answerable for, 

 

Is guilty of a misdemeanor, and in addition to the punishment 

prescribed therefor by the penal law, he forfeits to the party injured treble 

damages, to be recovered in a civil action. 

364. Based upon Cahill Gordon, Sloane and other Cahill Gordon attorneys 

participation and roles in the Fraudulent Asbestos Defense Scheme set forth above, 

including but not limited to events concerning Plaintiff Chernick’s asbestos suit before 

the New York Supreme Court, Defendant Cahill Gordon and its lawyers assigned 

responsibility for handling and managing BASF’s asbestos defense, such as Defendant 

Sloane, together with all or some of the Fictitious Defendants identified as John Doe 

Lawyers 1 to 500, violated the provisions of N.Y JUDICIARY LAW §487. 

365. Civil relief, and the imposition of treble damages is available for 

violations of N.Y. Judiciary Law §487 where, as here based on the forgoing facts, the 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 161 of 173 PageID: 1926
162

defendants have engaged in a chronic, extreme pattern of legal delinquency, and though a 

violation of the provisions of the law is a misdemeanor, a criminal conviction is not a 

condition precedent to the imposition of said civil relief. 

366. As the direct, proximate and naturally occurring result of defendant 

Sloane’s and other Cahill Gordon attorneys’ participation in the 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, which acts and omissions were 

committed with intent to deceive the parties and the courts involved in asbestos litigation 

brought against BASF, Plaintiffs and members of the Class who are within the protected 

class under N.Y JUDICIARY LAW §487either: (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 

discontinued their cases without consideration; or (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. 

367. As a the result of the voluntary or involuntary dismissal or discontinuance 

of asbestos claims 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, thereby damaging 

and injuring them. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 162 of 173 PageID: 1927
163

368. Plaintiffs and the class have been irreparably harmed by defendant 

Sloane’s and other Cahill Gordon attorneys’ participation in the Fraudulent Asbestos 

Defense Scheme in violation of N.Y JUDICIARY LAW §487, for which there is no 

adequate remedy at law given the extraordinary misconduct of the defendants and the 

circumstances they created thereby. Equitable relief is appropriate in the nature of, inter

alia, (a) declaratory and injunctive relief restoring Plaintiff and class members back to 

the status quo ante the commission of the Fraudulent Asbestos Defense Scheme so they 

can each make an informed decision regarding any further pursuit of their legal remedies, 

and, should Plaintiff or a class member then elect to proceed with a damages claim 

against BASF and any of the defendants, further enjoining Defendants from asserting any 

defenses that would bar or limit the claim such as res judicata, statute of limitations, 

repose limits, laches, judgment merger, release, settlement, collateral estoppels, accord 

and satisfaction and/or unclean hands; (b) declaratory and injunctive relief curing, as 

needed and just, any evidentiary harm and proof impediments Defendants’ egregious 

misconduct is responsible for creating as more particularly set forth below; (c) a decree 

and injunction imposing a constructive trust upon the Lawyer Perpetrators’ property 

pending their rendering accountings to the Court of the benefits they unjustly reaped as a 

result of their spoliation and fraudulent concealment; and (d) a decree ordering 

disgorgement of such benefits revealed in the accounting which, in all equity and 

conscious of the Court, the Lawyer Perpetrators should not retain under the 

circumstances, together with an equitable distribution of such disgorgement. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 163 of 173 PageID: 1928
164

COUNT VII 

UNJUST ENRICHMENT 

(Against Lawyer Perpetrators and John Doe Lawyers 1 to 500) 

369. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

370. The Lawyer Perpetrators and the Fictitious Defendants identified as John 

Doe Lawyers 1 to 500 obtained fees and compensation based upon their committing, or 

their aiding and abetting others committing, the spoliation of evidence and/or other 

deceitful, fraudulent, unlawful, wrongful and unethical professional actions as set forth 

above. By so doing they were unjustly enriched. 

371. The Lawyer Perpetrators and Fictitious Defendants identified as John Doe 

Lawyers 1 to 500 in all fairness and equity should not be permitted to unjustly retain the 

proceeds from such misconduct at the expense of Plaintiffs and members of the Class, 

whose compensation rights and claims were wrongfully taken and deprived by these 

Defendants’ wrongful and deceitful conduct, or by the conduct of others they supervised, 

directed and controlled. 

372. The Lawyer Perpetrators and Fictitious Defendants identified as John Doe 

Lawyers 1 to 500 should be ordered to account for and disgorge all fees, bonuses and 

other compensation received, together with any interest earned thereon, in connection 

with the Fraudulent Asbestos Defense Scheme, with such funds being paid into Court for 

fair and just allocation among Plaintiffs and members of the Class as their interests lie. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 164 of 173 PageID: 1929
165

COUNT VIII 

UNJUST ENRICHMENT 

(Against BASF Only) 

373. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein. 

374. BASF earned or increased its revenues and profits through its employees 

and managers committing, or aiding and abetting others committing, the spoliation of 

evidence and/or other deceitful, fraudulent, unlawful, wrongful and unethical professional 

actions as set forth above. By so doing they were unjustly enriched at the expense and to 

the detriment of Plaintiffs and members of the Class who were denied their right to fair, 

full and just compensation for their asbestos claims. 

375. BASF in all fairness and equity should not be permitted to unjustly retain 

the revenues and profits from such misconduct at the expense of Plaintiffs and members 

of the Class, whose compensation rights and claims were wrongfully taken and deprived 

by BASF’s wrongful and deceitful conduct, or by the conduct of others they supervised, 

directed and controlled. 

376. BASF should be ordered to account for and disgorge all revenues and 

profits, together with any interest earned thereon, earned in connection with or as a result 

of the Fraudulent Asbestos Defense Scheme, with such funds being paid into Court for 

fair and just allocation among Plaintiffs and members of the Class as their interests lie. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 165 of 173 PageID: 1930
166

COUNT IX 

Civil conspiracy 

(Against All Defendants) 

377. Plaintiffs incorporate and re-allege the preceding paragraphs as if fully 

repeated herein 

378. 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. 

379. 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’s of the conspiracy part and role in same. 

380. 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, the violation of 

N.Y. Judiciary Act §487, and making material misrepresentations and omissions 

designed to defraud Plaintiffs and Class Members of their asbestos injury claims as 

described above. 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 166 of 173 PageID: 1931
167

381. 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. 

382. 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. 

383. 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. Equitable relief, is appropriate in the nature 

of, inter alia, (a) declaratory and injunctive relief restoring Plaintiff and class members 

back to the status quo ante the commission of the Fraudulent Asbestos Defense Scheme 

so they can each make an informed decision regarding any further pursuit of their legal 

remedies and, should Plaintiff or a class member then elect to proceed with a damages 

claim against BASF and any of the defendants, further enjoining Defendants from 

asserting any defenses that would bar or limit the claim such as res judicata, statute of 

limitations, repose limits, laches, judgment merger, release, settlement, collateral 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 167 of 173 PageID: 1932
168

estoppels, accord and satisfaction and/or unclean hands; (b) declaratory and injunctive 

relief curing, as needed and just, any evidentiary harm and proof impediments 

Defendants’ egregious misconduct is responsible for creating as more particularly set 

forth below; (c) a decree and injunction imposing a constructive trust upon Defendants’ 

property pending their rendering accountings to the Court of the benefits they unjustly 

reaped as a result of their spoliation and fraudulent concealment; and (d) a decree 

ordering disgorgement of such benefits 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 

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. Declaratory and equitable relief restoring members of the Asbestos 

Claimant Class back, as near as possible, to the position they were in prior to the 

commission of Defendants’ obstruction of justice and fraud, including but not limited 

to, should the Court find it equitable and just, a declaration or injunction: (i) 

prohibiting the BASF and Cahill Gordon defendants from asserting or claiming 

against Plaintiffs and members of the Class the benefit of res judica or any other 

claim preclusion doctrine or right based upon prior litigation or a claim adjudication 

concerning BASF’s talc or talc products; (ii) barring the BASF and Cahill Gordon 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 168 of 173 PageID: 1933
169

defendants from asserting any time passage related defense such as statutes of 

limitations, laches, repose or death action claim time commencement requirements; 

and/or (iii) upon a Plaintiff’s or any class member’s election to file or re-file suit 

against BASF for his or her asbestos injury related claims, and, where applicable, the 

repayment to BASF of any money paid by BASF in consideration of a prior 

settlement, barring Defendants from asserting any defense based upon the existence 

of a release of claims, covenants not to sue or settlement agreement or similar 

defense; 

c. 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, 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; 

d. 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; 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 169 of 173 PageID: 1934
170

e. A 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;. 

f. 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; 

g. 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. 

h. 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; 

i. A determination of Defendants’ liability for punitive damages to Plaintiffs 

and the Class relating to the spoliation of evidence relevant and material to 

establishing asbestos injury claims against BASF; 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 170 of 173 PageID: 1935
171

j. 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; 

k. Entry of an order or orders by the Court determining and declaring 

Defendants’ liability for an accounting and thereafter disgorgement of any and all 

revenues, profits or money received that derived from or are traceable to, as is 

applicable, Defendants’ violations of N.J.S.A. § 2C:41-1 et seq. or NY. Judiciary 

Law §487, together with a determination by the Court of Plaintiffs’ and Class 

Members interests in the fund so created; 

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

JURY DEMAND 

 Plaintiffs hereby demand trial by Jury on all issues so triable. 

 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 171 of 173 PageID: 1936
172

Dated: August 4, 2011 Respectfully Submitted, 

 COHEN, PLACITELLA & ROTH, P.C. 

 ____/s/ Christopher M. Placitella____

Christopher M. Placitella, Esq. 

Michael Coren. Esq. 

Michael Noonan, Esq. 

Matthew T. Stone, Esq. 

cplacitella@cprlaw.com 

mcoren@cprlaw.com 

mnoonan@cprlaw.com 

mstone@cprlaw.com 

127 Maple Ave 

Red Bank, New Jersey 07701 

(732) 747-9003 

 Attorneys for Plaintiffs and the Proposed Class 

Of Counsel: 

Stewart L. Cohen, Esq.*

Harry M. Roth, Esq.*

COHEN, PLACITELLA & ROTH, P.C. 

Two Commerce Square 

2001 Market Street, Suite 2900 

Philadelphia, PA 19103 

(215) 567-3500 

(* Pro hac vice admission) 

CERTIFICATION OF SERVICE 

I, Matthew T. Stone, Esquire, of full age, hereby certify that on 4th day of August, 

2011, a true and correct copy of the foregoing 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/ Matthew T. Stone________ 

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 172 of 173 PageID: 1937
173

Case 2:11-cv-01754-SRC-CLW Document 70 Filed 08/04/11 Page 173 of 173 PageID: 1938