June 13, 2017

Via ECF Filing 

Honorable Joseph A. Dickson

United States District Court for the District of New Jersey

MLK Building & US Courthouse

50 Walnut St. Room MLK 2D

Newark, NJ 07101

RE: Williams v. BASF Catalysts, LLC, et al. – No. 2:11-cv-01754

Plaintiffs’ Response to Defendant BASF Catalysts, LLC’s June 5, 2017 Letter Submitting

Goodyear Tire & Rubber Co. v. Haegar, 137 S.Ct. 1178 (2017) as “Supplemental

Authority” to Defendants’ Position on the Scope of Discovery (Dkt. 316)

Dear Judge Dickson: 

On behalf of Class Action Plaintiffs we respond to BASF Catalysts, LLC’s letter dated 

June 5, 2017 and its argument in Court regarding the critical nature of the Supreme Court’s 

decision in Goodyear Tire and Rubber v. Haeger, 137 S.Ct. 1178 (2017). The Goodyear opinion 

is an analysis of the Federal Rules of Civil Procedure (FRCP) that has no bearing on this action, 

which derives from State law; not the FRCPs. We address here (1) unlike the FRCPs, which the 

Goodyear case analyzed, this case arises under New Jersey’s fraudulent concealment tort; (2) the 

Due Process Clause’s guaranty is not being stifled despite BASF’s contention to the contrary; and 

(3) that Goodyear does not expand Defendant’s right to discovery. Rather, as the Third Circuit has 

ruled here in Williams v. BASF Catalysts, LLC, 765 F.3d 306 (3d Cir. 2014) and the Supreme 

Court of New Jersey explained in Rosenblit v. Zimmerman, 166 N.J. 391, 766 A.2d 749, 757-758

(N.J. 2001) and Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 961 A.2d 1167, 1190 (N.J. 2008),

this case is solely about the Defendant’s wrongful acts. The validity vel non of Plaintiffs’ 

underlying claims are simply not at issue.

Goodyear is irrelevant to the discovery dispute before this Court. Unlike Goodyear where 

the Haegars sought discovery sanctions pursuant to the Federal Rules of Civil Procedure and the 

federal court’s inherent authority to sanction discovery misconduct, the Williams Plaintiffs seek 

compensatory and punitive damages for the independent torts of fraudulent concealment and fraud 

under New Jersey state law. Plaintiffs’ independent tort claims do not include a motion for 

sanctions under federal law or the FRCP, but strictly arise from New Jersey state law which 

provides the rule of decision in this case. The simple fact that both instances involve spoliation 

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Honorable Joseph A. Dickson

June 13, 2017

Page 2

does not make Goodyear relevant to the scope of discovery in this case, particularly where the 

redress sought is completely different and has different policy goals as discussed below.

Further, Goodyear does not support Defendants’ claim that limiting the scope of discovery 

to the allegations of this case will deprive them of their right to due process. Defendants already 

have had the opportunity to take discovery into each and every one of plaintiffs’ decedents’ 

asbestos cases, as well as all of the absent class members’ who had filed asbestos cases. BASF 

either took that discovery in the terminated state cases, which were litigated up to and/or through 

summary judgment, or it chose not to based on its “no asbestos in Emtal talc” misrepresentations. 

BASF does not have the right to re-take the discovery it has already taken or should have taken 

decades ago in the underlying cases. The Goodyear opinion does not change that. 

Finally, despite BASF’s contention to the contrary, Plaintiffs are not “inviting the Court to 

commit the very errors that the lower courts committed in Goodyear itself.” See Dkt. 316 at 4. The 

Supreme Court in Goodyear held that when imposing sanctions pursuant to the Rules of Civil 

Procedure and the Court’s inherent authority to order sanctions, the sanctions must be 

compensatory, not punitive because discovery sanctions imposed by a court cannot be meant to 

punish. To ensure that the legal fees awarded as a sanction are compensatory rather than punitive, 

the Court imposed a “but for” causation standard. The tort of fraudulent concealment does not 

present the same due process issues raised in Goodyear. First, two of the three goals of fraudulent 

concealment explicitly set forth by the New Jersey Supreme Court are to “punish the wrongdoer” 

and “deter others from such conduct.” Rosenblit, 166 N.J. at 401. For these reasons, the New Jersey 

Supreme Court explicitly provided for punitive damages as an award for fraudulent concealment. 

See id. at 407. It is New Jersey state law on fraudulent concealment, fraud and the associated 

damages – and not federal law or federal sanctions – that determines the Plaintiffs’ right to 

damages and the applicable standard of proof. Second, fraudulent concealment under New Jersey 

law has a different “causation” standard than discovery sanctions. See Williams, 765 F.3d at 321-

322; Rosenblit, 166 N.J. at 406-407; Tartaglia, 197 N.J. at 120-121. Specifically, the Third Circuit 

in this case ruled that “but for” causation is not the test under New Jersey law for fraudulent 

concealment and explicitly overturned Judge Chesler’s decision on this point. See Williams, 765 

F.3d at 321-322. Thus, Goodyear has no bearing on the elements of the torts pled and the discovery 

that may be taken with respect to the case at bar. 

In short, Goodyear is inapposite to Williams and the discovery dispute pending before this 

Court.

Respectfully Submitted,

/s/ Christopher M. Placitella ) 

 Christopher M. Placitella

 

CMP/bd

cc: All Counsel of Record via ECF

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