February 15, 2018

VIA ECF 

The Honorable Justice Roberto A. Rivera-Soto (ret.)

Special Discovery Master

Ballard Spahr LLP 

210 Lake Drive East, Suite 200 

Cherry Hill, New Jersey 08002-1163

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

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

Dear Justice Rivera-Soto:

As directed in your email of February 12, 2012, this Letter addresses 

BASF’s Motion to Compel, and outlines why their motion seeking to compel 

Plaintiffs to provide computations for the categories of damages claimed should be 

denied (ECF # 431). 

First, the Plaintiffs themselves cannot offer any evidentiarily competent or 

admissible opinion or calculation regarding the damages they should be awarded as 

they are without personal knowledge on the subject. Lightning Lube v. Witco 

Corp., 4 F.3d 1153, 1175-76 (3d Cir. 1993) (allowing lay opinion admissible 

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The Honorable Robert A. Rivera-Soto

February 14, 2018

Page 2

because the witness had personally knowledge and was involved in party’s lost 

profit analysis). Neither Ms. Holley nor Ms. Wengerd (whose depositions are 

scheduled for next week) participated in discussions regarding the settlement of the 

underlying cases. Nor have they ever undertaken any assessment of the losses at 

issue; and therefore, they have none of the factual background regarding those 

decisions. Consequently, their lay opinions about the value of the cases here are 

neither competent under Rule 701 of the Federal Rules of Evidence nor are their 

opinions likely to lead to discoverable evidence. Id.; Botta v Brunner, 138 A.2d 

713, 722-725 (1958); Fed. R. Evid. 701. 

Indeed, New Jersey’s substantive law prohibits at trial both a party’s opinion 

on the exact amount of the plaintiff’s claims or their lawyer’s suggestion of what 

the case’s value is on the issues of general or unliquidated damages in a personal 

injury claim under the Botta rule. Botta v Brunner, supra (holding New Jersey law 

forbids any advocate suggesting any monetary figure for unliquidated damages); 

accord, Brodsky v Griunnell Haulers, Inc., 853 A.2d 940 (2004) (recognizing 

Bottas’s general rule with the amendment to allow time unit arguments to be made 

without any reference to a specific sum). It thus strains reason to find that a 

definitive damage calculation from the Plaintiffs or counsel who handled the 

underlying matter is relevant at all here. So in view of the Botta rule, as well as Fed 

R. Evid. 701, compelling Plaintiffs to offer computations of their damages, before 

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The Honorable Robert A. Rivera-Soto

February 14, 2018

Page 3

expert discovery would not lead to the discovery of admissible evidence, and 

BASF’s request for relief should be denied.

Second, even were the opinions from these witnesses deemed discoverable 

under the Federal Rules of Civil Procedure, the class relief sought in this case 

focuses on equitable remedies, not individual damages. While it may be that such 

becomes relevant depending on whether a class is certified, and if so, what type of 

class, they are not at this time. Therefore, Defendants suffer no prejudice by not 

being able to ask for these witnesses’ opinions on what damages they should 

recover. At best, Plaintiffs’ counsel in the underlying cases may be able to offer 

their recollection of settlement values but here for loss assessment purposes, the 

computation of individual losses will be based upon claims valuations performed 

by the experts plaintiffs identified in their class motion. And materiality of this 

computation will depend on the outcome of the class certification motion. 

BASF’s passing arguments by analogy to proof required in legal malpractice 

and securities fraud cases,

1

are completely irrelevant and do not warrant any in 

depth analysis because the standards for establishing a case within a case in legal 

malpractice do not apply to this case charging fraudulent concealment.

 

1 Securities fraud cases require expert testimony on stock market prices and 

the computation of damages, and thus have no bearing here.

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The Honorable Robert A. Rivera-Soto

February 14, 2018

Page 4

For the above reasons, BASF’s request that the Plaintiffs be compelled to 

provide specific amounts of the value of their underlying claims at this time be 

denied, and that Plaintiffs be permitted to supplement their responses with expert 

discovery at an appropriate time.

Respectfully submitted,

/s/ Christopher M. Placitella

Christopher M. Placitella

Counsel for Plaintiffs and the 

Proposed Class

cc: All Counsel of Record (via ECF)

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