BASF Corporation and its former lawyers at Cahill Gordon & Reindel won a resounding victory on Wednesday as a federal judge dismissed a purported class action that accused them of suppressing and destroying evidence in connection with thousands of asbestos suits.
In a 41-page opinion, U.S. District Judge Stanley Chesler in Newark struck a suit brought by six plaintiffs representing deceased individuals who were allegedly exposed to asbestos while working for Englehard Corporation, a company that was acquired by BASF’s Catalysts division in 2006.
The plaintiffs and their lawyers at Fox Rothschild and Cohen, Placitella & Roth claimed that BASF/Englehard and Cahill Gordon, which formerly served as BASF’s national counsel on asbestos matters, knew that a talc powder used in BASF factories contained asbestos — and concealed that knowledge for more than 25 years.
In this case, BASF and Cahill both retained their own lawyers — the company hired Kirkland & Ellis and Blank Rome, while Cahill retained Williams & Connolly and Connell Foley. Additionally, Greenbaum Rowe Smith & Davis; Marino Tortorella & Boyle; and McElroy Deutsch Mulvaney & Carpenter represented individually named BASF employees.
According to the plaintiffs’ complaint, the deceased Englehard employees all died of asbestos-related illnesses. Various state courts throughout the country nevertheless dismissed all their prior asbestos lawsuits against BASF because they couldn’t prove that there was asbestos in the talc product.
In 2009, however, new information came to light in a suit filed by the daughter of a BASF chemist who alleged that she contracted mesothelioma as a result of exposure to asbestos. The chemist testified in a deposition that the talc contained asbestos, but that he’d been instructed since the 1980s to destroy all documents showing as much.
During discovery in that case, Paduano v. Ace Scientific Supply Co. Inc., BASF produced sealed depositions and other documents that seemed to corroborate the chemist’s claims. (Christopher Placitella of Cohen, Placitella represented the plaintiff in Paduano.)
The Engelhard plaintiffs originally requested that their dismissals all be reopened, but later amended their complaint to request instead that BASF and Cahill be enjoined from invoking the statute of limitations and claiming res judicata as a result of those prior dismissals. BASF and Cahill countered that a class action would violate principles of federalism by requiring a federal court to invalidate decisions by state courts. The defendants also questioned whether the complaint sufficiently pleaded asbestos-related injuries, while Cahill argued that it was immune from tort liability because it was simply defending its client.
In his ruling, Chesler agreed that he lacked the authority to reopen the cases and cited the federal Anti-Injunction Act of 1793, which limits the right of a federal court to enjoin state court proceedings. He also agreed with BASF and Cahill that the complaint didn’t state a valid claim, and that the plaintiffs weren’t prejudiced by the alleged suppression of evidence.
Finally, Chesler held that Cahill’s lawyers were immune from fraud claims under a New Jersey state law protecting statements made by attorneys while defending a client during litigation, even if the lawyers behaved improperly. While Chesler made clear he did not approve of the alleged conduct, he rejected the plaintiffs’ argument that the law only applied to lawyers behaving ethically.
John Villa of Williams & Connolly represents Cahill. Williams declined to comment, and BASF lawyer Eugene Assaf of Kirkland & Ellis didn’t respond to a request for comment. Jeffrey Pollock of Fox Rothschild, who served as co-lead counsel for the proposed class, said he was disappointed by the decision and was considering his options.
A BASF spokesperson sent this statement: “While BASF has always taken plaintiffs’ allegations seriously, it has not found that exposure to Englehard’s talc caused injury. The court in this case has now found that none of plaintiffs’ substantive counts regarding alleged misconduct stated a valid legal claim.” •