Judge Garrett Brown Carmen Natale

After plaintiffs said a special master’s hourly rate is at the top of the scale for New Jersey, the judge in a fraudulent-concealment case against BASF and law firm Cahill, Gordon & Reindel has replaced the first candidate with someone—a former justice of the New Jersey Supreme Court—who charges less.

Chief U.S. Judge Jose Linares appointed Garrett Brown Jr. as discovery special master June 8 in Williams v. BASF Catalysts. Plaintiffs in the suit have alleged that Cahill Gordon and BASF conspired to destroy evidence in a series of asbestos injury suits. But Brown “declined to serve as special master” after plaintiffs said his $900 hourly rate was “at the highest end of New Jersey legal billing rates” and said the cost could be “prohibitive” in light of the contentious nature of the case. On Aug. 3, a new special master was appointed—former New Jersey Supreme Court Justice Roberto Rivera-Soto, whose hourly rate is $695.

The master will oversee discovery in a suit on behalf of thousands of people who say they were short-changed on their asbestos injury claims because Cahill Gordon and a BASF subsidiary destroyed evidence. Linares also ruled on Aug. 3 that the defendants could not conduct discovery into the merits of the underlying asbestos claims, and said discovery should focus on whether BASF and Cahill Gordon engaged in fraud and spoliation.

The case, which dates to 2011, is brought by representatives of people who allegedly died as a result of asbestos-contaminated talc produced by Engelhard Corp., of Iselin, a BASF subsidiary since 2006. They claim the original tort claims by the afflicted parties were dismissed or withdrawn because Engelhard in-house counsel and the company’s lawyers at Cahill Gordon in New York kept evidence from litigants, their attorneys and the courts. The suit, raising claims of fraudulent concealment, fraud on the court, unjust enrichment, civil conspiracy and violation of the New Jersey racketeering law, is filed in behalf of a potential class of thousands of people similarly defrauded.

Besides BASF and Cahill Gordon, the suit names as defendants two in-house attorneys from Engelhard and three Cahill Gordon attorneys.

U.S. District Judge Stanley Chesler dismissed the case in 2012 and in 2014 the U.S. Court of Appeals for the Third Circuit partially reversed that dismissal. In 2016, Linares denied motions by Cahill Gordon and BASF Catalysts to dismiss the case, finding the plaintiff sufficiently stated facts to support their claims of fraudulent concealment, spoliation, fraud and civil conspiracy.

The plaintiffs claim Engelhard received a report in 1979 indicating that its talc contained asbestos. According to the suit, the company circulated a memo directing employees to gather up documents relating to the contaminated talc so they could be destroyed. Cahill then helped the company manufacture favorable evidence, including false affidavits, false and incorrect expert reports, the suit claims.

Brown, who was a U.S. District Court judge in the District of New Jersey from 1985 to 2012, and became chief judge in 2005, is with JAMS in New York. He was an assistant U.S. attorney and was in private practice before becoming a judge.

Rivera-Soto, of Ballard Spahr and based in its Cherry Hill, New Jersey, office was the first Hispanic to serve on the Supreme Court. Rivera-Soto served on the court from 2004 to 2011 but opted to return to private practice after completing a tumultuous seven-year term. In 2007, the court censured Rivera-Soto after the Advisory Committee on Judicial Conduct accused him of seeking to use his influence as a justice when his teenage son was involved in a fight with a classmate. And in 2010 he announced that he would be abstaining from voting on decisions of the court to protest the temporary appointment of an Appellate Division judge to fill a long-term vacancy on the court. He argued the temporary appointment was unconstitutional.

In the suit against BASF and Cahill Gordon, plaintiffs attorney Christopher Placitella of Cohen, Placitella & Roth in Red Bank said Brown’s $900 hourly rate was not out of line for alternate dispute resolution services by someone with the former judge’s stature. But Placitella said it is “entirely foreseeable, in light of the zealous advocacy positions taken by defendants thus far,” that “the expense involved in compensating a special master in this matter will become prohibitive.”

Linares’ June 8 order said parties should bear costs of the special master on a pro rata basis. Placitella proposed to Linares that costs of the special master be split four ways, between the plaintiffs, BASF, Cahill Gordon and the remaining defendants, but the judge declined to grant that request.

Placitella said he did not know why Brown declined to serve.

“We’re happy to have Justice Rivera-Soto serve and to get this case moving. The court clearly said the defendants are not permitted to inquire into the merits of all the underlying cases in this class, and that the focus of discussion has to be on the misrepresentation, the destruction of evidence, and how that effected the decision to proceed in the case,” Placitella said.

A JAMS spokeswoman said Brown would not comment, but confirmed that his hourly rate is $900. Rivera-Soto did not return a call about the case. Justin Quinn of Robinson Miller in Newark, representing BASF, declined to comment. Robert Ryan of Connell Foley in Roseland, who represents Cahill Gordon, did not return a call.