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A state mass tort judge has been asked to recuse herself from asbestos injury suits after she failed to disclose a family member’s involvement in a case she is hearing.
Lawyers for BASF Catalysts filed a motion Tuesday asking Middlesex County Superior Court Judge Ana Viscomi to recuse and disqualify herself from multicounty asbestos litigation based on an allegation that the judge’s sister was once employed by BASF’s predecessor, Engelhard Corp.
BASF is named as defendant in about a dozen suits based on alleged injuries caused by a talc product called Emtal, which was made by Engelhard for industrial applications. Plaintiffs have accused BASF of spoliation based on missing Engelhard documents. Engelhard, formerly based in Iselin, was purchased by BASF in 2006.
Josephine Viscomi, the judge’s sister, worked for Engelhard from 1998 to 2001 as a library assistant in the research department, where her duties included keeping track of laboratory notebooks. Plaintiffs have accused Engelhard of spoliation, and the judge’s sister could be called to testify in the litigation, BASF argues.
What’s more, records from Engelhard’s human resources department show the judge contacted the company twice in writing and three times by phone concerning her sister’s employment, according to BASF. Those contacts were made while Viscomi was serving as special master for asbestos cases in Middlesex County, and she used her phone and fax numbers from the courthouse in those communications, according to the BASF motion. Some portions of the publicly released version of the recusal motion discussing the judge’s sister are redacted.
BASF said it became aware of the judge’s connection to Engelhard this past summer on finding references to Josephine Viscomi in company documents. BASF asked the judge in an Aug. 16 letter whether she was related to Josephine Viscomi. The judge replied by letter later that day, confirming that Josephine Viscomi is her sister, and adding, “I am aware that she was a library assistant for Engelhard Corporation at one time but not aware of the nature of her duties since we never discussed her work.”
BASF wrote back the next day, telling the judge records showed her sister was the person responsible for lab notebooks concerning Emtal talc and that personnel records showed her contacts with the company concerning her sister’s employment. BASF said the issues created an appearance of impropriety, dictating that she should recuse herself.
On Aug. 18, at 9:06 a.m., Viscomi told counsel in the case by email that she was recusing herself and that another judge would be assigned. At 9:17 a.m., a plaintiff’s lawyer in the case, Christopher Placitella, replied to the email, urging the judge not to recuse herself and calling the defense objections “frivolous,” according to the BASF motion. Then, at 9:30, the judge’s chambers sent another email to the parties, asking them to disregard the judge’s earlier message. And at 1:22 p.m., the judge sent out another email, apologizing for the confusion. BASF later wrote to the judge, asking her to recuse voluntarily, and Placitella wrote to the court that recusal was “unnecessary.”
On Aug. 21, Viscomi wrote to counsel to say she would not voluntarily recuse, and defense counsel would have to file a formal motion in order to seek her recusal.
BASF’s motion says Viscomi should be disqualified for failing to disclose her sister’s past employment at Engelhard, even if the judge did not herself believe the matter posed a conflict. The judge’s own involvement with Engelhard and the possibility that her sister might have information relevant to the case also require her to disqualify herself, BASF claims.
BASF also submitted declarations from Michael Ambrosio, a professor at Seton Hall University School of Law; Edward Dauber, a former member of the New Jersey Advisory Committee on Judicial Conduct; and Leslie Abramson of the University of Louisville School of Law, which state that the circumstances dictate recusal of Viscomi.
Viscomi was confirmed for the Superior Court in 2012 and she was designated as the multicounty litigation judge for asbestos in 2014. More than 1,300 asbestos cases are pending before Viscomi, according to the judiciary’s website.
Judiciary spokesman Peter McAleer declined to comment and also said Viscomi would not comment on the recusal motion. Plaintiffs lawyer Placitella confirms that he opposed Viscomi’s recusal but declines to discuss his reasons. He said his reason for opposing the motion will be made clear in his opposition papers. Lawyers at Kirkland & Ellis in Washington and Littleton Park Joyce Ughetta & Kelly in Red Bank, representing BASF, declined to comment on the motion.