Document 2jmeOLoXLR1yLQRk6zdDmv7np

NUTTER, McCLENNEN & FISH ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110-2699 TELEPHONE: 617 439-2000 FACSIMILE: 617 973-9748 RY TELECOPY and P.S. MAIL February 13, 1991 18371-1 DIRECT DIAL NUMBER: (617) 439-2460 James H. Tourtelotte, Esq. Robinson Donovan Madden & Barry, 1500 Main Street Suite 1400 Springfield, MA 01115 P.C. Re: Alice L. Warren, Administratrix v. The Dow Chemical Company, Union Carbide, et al Your File No. D-16183 Dear Mr. Tourtelotte: On behalf of Union Carbide Chemicals & Plastics Company, Inc. ("Union Carbide"), I am responding to your letter dated January 9, 1991 and received on January 14, 1991 regarding John L. Warren and Alice L. Warren. In that letter you make a claim pursuant to M.G.L. c. 93A, and demand payment in the amount of $2,000,000. As Union Carbide understands the facts underlying your claims, John Warren allegedly died of angiosarcoma of the liver resulting from his exposure to "vinyl chloride monomer and vinyl chloride related products" which you allege Union Carbide sold or supplied to John Warren's employer in Springfield, Massachusetts, Monsanto Chemical Company ("Monsanto"). However, your letter does not define or describe what "vinyl chloride related products" are or which, if any, were ever sold or supplied by Union Carbide to Monsanto. Union Carbide has no information about such "related products." Your letter also does not state when Union Carbide allegedly sold or supplied vinyl chloride monomer to Monsanto, nor does it describe how or when John Warren was exposed to Union Carbide's vinyl chloride r. HYANNIS, MASSACHUSETTS fl COUNSEL: AMSTERDAM LONDON TOI|tO UCC 081132 FEB i 5 1991 J* ft* WWllMk/ * NUTTER. McCLENNEN & FISH James H. Tourtelotte, Esq. February 13, 1991 Page 2 monomer. In short, there is no factual information in your letter which supports a conclusion that Mr. Warren was exposed to Union Carbide's vinyl chloride monomer. As you know, Union Carbide has been trying to obtain information about the identification of its vinyl chloride monomer at Monsanto through discovery in the pending civil action: Alice L. Warren. Administratrix v. The Dow Chemical Company, et al. Civil Action No. 89-30201-F. Union Carbide does not yet know whether you have any information which shows that John Warren, personally, was exposed to Union Carbide's vinyl chloride monomer. Union Carbide's internal investigation of this issue reveals no present basis to conclude there was any such identifiable exposure. Although Union Carbide acknowledges that exchange of vinyl chloride monomer took place between Union Carbide and Monsanto, Union Carbide cannot identify any specific date or dates when its vinyl chloride monomer was exchanged to Monsanto's Springfield facility, nor can it identify any specific quantity of vinyl chloride monomer which was exchanged to Monsanto. In 1967, Union Carbide stopped producing vinyl chloride monomer at its South Charleston, West Virginia facility, and after that date Union Carbide believes it would not have furnished any vinyl chloride monomer to Monsanto's Springfield facility. V Your letter specifies, at pages 2 and 3, six paragraphs of alleged "unfair acts and deceptive practices." Your letter does not provide any factual information to support your conclusional claims of negligence (paragraphs 1-5) or breach of warranties (paragraph 6), however. In paragraph 2, for example, you allege that Union Carbide "was negligent in processing, testing, designing, [and] manufacturing ..." vinyl chloride monomer, but you have not explained what it is Union Carbide allegedly did wrong, or what it should have done differently in these respects, thus not permitting Union Carbide fully to understand your claims. The same lack of specificity applies to the other allegations of wrongdoing. Nevertheless, Union Carbide believes it exercised all the due care necessary under the circumstances of its commercial production of vinyl chloride monomer and that its vinyl chloride monomer was, at all relevant times, merchantable and fit for its intended purposes. UCC 081133 NUTTER. McCLENNEN & FISH James H. Tourt lotte, Esq. February 13, 1991 Page 3 Union Carbide specifically and vigorously denies the very serious allegations made in your letter at pages 4 and 5, that: Union Carbide, along with other vinyl chloride manufacturers, knew as early as 1970 of the cancer-causing effects of vinyl chloride exposure and intentionally withheld this information from governmental regulatory agencies such as NIOSH and from chemical workers such as Mr. Warren who were regularly exposed to vinyl chloride supplied by Union Carbide. it It It Union Carbide, along with the other members of MCA, engaged in a deliberate cover-up of Dr. Viola's findings and agreed among themselves to withhold this information from NIOSH and from the general public for fear that it would have serious economic consequences for the vinyl chloride industry. These allegations are unfounded. Union Carbide, over a period of years, sponsored research on the effects of vinyl chloride exposure, including sponsorship of Manufacturing Chemists Association ("MCA") studies on this subject. Union Carbide acted reasonably and responsibly upon acquiring any knowledge of potential health hazards to humans from exposure to vinyl chloride monomer. In sum, Union Carbide believes it has a full and complete defense to all of your claims of negligence, breach of warranty and Chapter 93A liability. Among its defenses, and without waiving others, Union Carbide highlights the defense of no product identification. That is. Union Carbide stresses that there are no facts currently known to it which show John Warren had some regular and frequent exposure in close proximity to Union Carbide's vinyl chloride monomer. Absent such a showing, Union Carbide would not be liable. The Commonwealth of Massachusetts does not expect Union Carbide to be an insurer of other producers' vinyl chloride monomer. UCC 081134 NUTTER, McCLENNEN & FISH James H. Tourtelotte, Esq. February 13, 1991 Page 4 In addition, Union carbide highlights the fact that John Warren's employer, Monsanto, was itself a producer of vinyl chloride monomer. It is Union Carbide's understanding that Monsanto supplied itself with the vast majority of any vinyl chloride monomer to which John Warren may have been exposed. As a sophisticated user of vinyl chloride monomer -- indeed, as a producer of the product -- Monsanto, as John Warren's employer, would have been in the best if not the only position to protect John Warren, through warnings or otherwise, from the alleged injury due to exposure to vinyl chloride monomer. Monsanto, like Union Carbide, was a member of the MCA which studied the effects of vinyl chloride monomer on humans, and Union Carbide would have been reasonable in relying upon Monsanto to warn Monsanto's employees about the known risks associated with exposure to vinyl chloride monomer, whether that product was produced by Monsanto or Union carbide. More specifically, your letter does not provide sufficient factual detail to support a conclusion that Union Carbide engaged in any unfair or deceptive act or practice proscribed by Chapter 93A. Union Carbide believes that Chapter 93A does not apply to Union Carbide under the circumstances of this case, as they are presently understood. First, Chapter 93A was approved on December 26, 1967. This statute is not applied retroactively; that is, it does not apply to alleged conduct which occurred before the effective date of the statute. Commonwealth v. DeCotis. 366 Mass. 234, 244 n.8 (1974); Gopen v. American Supply Co.. Inc.. 10 Mass. App. Ct. 342, 349 (1980). Since Union Carbide discontinued its production of vinyl chloride monomer at its South Charleston, West Virginia facility in 1967, and since, after that date. Union Carbide believes it would not have furnished any vinyl chloride monomer to Monsanto's Springfield facility. Chapter 93A does not apply to Union Carbide in this instance. Second, the interstate commerce exemption to Chapter 93A, M.G.L. c. 93A, S 3(1)(b) [Repealed], exempts Union Carbide from liability for transactions which occurred in interstate commerce. This exemption, which was repealed on October 6, 1983, exempted a defendant from Chapter 93A liability if it derived at least 20 percent of its gross revenue from UCC 081135 NUTTER, McCLENNEN & FISH James H. Tourtelotte, Esq. February 13, 1991 Page 5 transactions in interstate commerce, and the transactions or actions complained of in the Chapter 93A action did not "occur primarily or substantially within the Commonwealth." M.G.L. c. 93A, S 3(1)(b)[Repealed]. The 1983 repeal of this statute was not given retroactive effect. Goldstein Oil Company v. C. K. Smith Company. Inc., 20 Mass. App. Ct. 243 (1985). Union Carbide believes it meets all of the factual criteria of this exemption. Third, Union Carbide would challenge the Attorney General's regulation which imposes liability under Chapter 93A based solely on a breach of any warranty. 940 Code Mass. Regs. S 3.08(2)(1986). As you probably know, the court expressly refused to rule on a challenge to the Attorney General's regulation in Maillett v. ATF-Davidson Co.. Inc.. 407 Mass. 185 (1990) because the jury had found negligent conduct as well as breach of warranty. Whether the Attorney General's regulation can stand alone is still an open question, therefore. Your letter is also problematic because you do not itemize or explain the damages aspect of your claim. Union Carbide cannot reasonably evaluate the $2,000,000 demand. It is not even clear on whose behalf a Chapter 93A claim is being made. On page 1 of your letter, you state the demand is "on behalf of Mrs. Warren, both individually and as Administratrix of the Estate of John H. Warren." Then, at page 3 of your letter, you refer to damages sustained by Mrs. Warren "and her two sons, Daniel and John" for "loss of reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice, pain and suffering and mental anguish, funeral and burial expenses and other incidental and consequential damages." Union Carbid does not understand the legal basis upon which Daniel Warren or John Warren, neither of whom were minors at the time of their father's death, might recover. Moreover, you have not specified any dollar amount or amounts attributable to any of the categories of damages referenced in your letter. Union Carbide understands the difficulty in assigning a dollar amount to such intangibles as "pain and suffering," yet other categories are easily itemized. Without reasonable oCC08U36 NUTTER, McCLENNEN & FISH James H. Tourtelotte, Esq. February 13, 1991 Page 6 specificity, Union carbide is not in a position to evaluate your demand other than to note at this time that it appears extraordinarily high. Based upon discovery in the pending civil action, Union Carbide understands that John Warren was in his sixties at the time of diagnosis and death, that he was nearing the end of his work life, and that he then had no minor children who were dependent upon him. These facts do not suggest a recovery, even assuming liability, in the $2,000,000 range, and provide Union Carbide with little upon which to estimate a more realistic potential liability upon which fruitful negotiations could be predicated. In conclusion, your letter does not provide sufficient information to establish Union Carbide's liability in negligence, breach of warranty or under Chapter 93A. Most significant is the absence of information showing that Mr. Warren was exposed to Union Carbide's vinyl chloride monom r at any specific time or place, or with any frequency likely to have caused his alleged illness. Neither does your letter provide facts about your claim of damages sufficient to analyze your $2,000,000 demand. Under these circumstances, Union Carbide does not make any settlement offer at this time. However, as discovery in the pending civil action progresses, Union Carbide will reconsider its position if facts reveal any basis for liability or a more detailed picture of recoverable damages. Very truly yours, SRB/jlf 5178i/56 bcc: John R. Downey, Esq. Mary Sundt, Esq. Judith Elledge, Esq. Ucc 081137