Document D72M2Jry25Mx92j21XmXjRbn

MORRISON. MAHONEY ft MILLER COUNSELLORS AT LAW 250 SUMMER STREET BOSTON. MASSACHUSETTS 02210 6I7-439-7500 FACSIMILE *17 0* 75*0 OR *17-737 0090 TELEX 94067* POST OFFICE 60* *7* 31*0 MAIN STREET BARNSTABLE. MASSACHUSETTS 02*30 506 362 5595 FACSIMILE 50* 3*2-517* 1130 MECHANICS INW XOWtM IOO FRONT STREET WORCESTER. MASSACHUSETTS 01*0* 506-757-7777 FACS** 506 752*224 700 PEASANT STREET NEW BEDEOR. MASSACHUSETTS 02740 506 *99-0014 FACSIMILE 506 990-031* 1U5 MAIN STREET SPRlNGFlELO. MASSACHUSETTS 01103 413 737 437) FACSIMILE 413 73* 3129 ONE OtO STONE SOUARC PROVIDEMCE. RHODE ISLAND 02903 401 -331 -4**0 FACSIMILE 401 351-4 4 20 SIX LLOYDS AVENUE LONOON. EC3N 344 ENGLAND 01V44-71 4*629*4 TELEX B6I1764 FACSlMEC 01M4-7V4806156 WRITER S DIRECT DIAL NUMBER: ail* i *iita* 4 *4*4 LAM *OAA>*S PAIA AOO0*<* cow4*0 f c*c*c* <** A tU**CM S1C*% 4 AMOA<A M<M*4A 0*M 40CL f*CI AtCMAA* * *t11'*etil PtTtA c *OHt MAAC A NASTY JCA* M K(UH MAA GAAMOIft ALAN M ALISCM MCM*0 C 1*001 * ALICC OilCH LAWACMCK * IOTII ALAM A AtNOiCA*" W<MACL A PC SI A. JA Ul IHlHtN MACPHtC** JOHN SUCAUT. JA AMWCL PCAAlN* JW-. i GAyift c. * mMio*1 ft mmc JN4* A RIOAN K*** **OCL ClAACA a m Rtftitn RlP* C ftULL'VAN JAMCS GRAHAM XIMW4 P ft(AlMO* CAROL A M#IM lA*r**CC A OUOANa P*AA 4 MtfCLLO JS***y * niHKMAA JO* AUAXC. JA i*CkCT t COSTA mwmtca Omanian NANC* RfOAN WILLIAM AOOACAf AAiTm LASALCCAA JOHA* C ACHOMA* JO* A SAKAKCCMV IHOM C IKOCAiCe c*r* smjtm tmo*i % rOAC** j wMMClACAOCA l*W}*< C OCMOACST4F4 M CICOCS C*A* W MAAVST KIMACAlT M SAILLANT t*0 W WILCOA HA>*t* M WINN* o**o c MAOLtoaa *n* s wacoc A*i PAT AlCLLVAA6 AOACPM f STAUMSAI. JA *** P. AAttCT MATT MACNA* JOUH A UCKlM CUTH* a. ROC****** LAlWCM PH.LSSUAV A HONDA L AlTUM*CA MAAS U PfcAAT MJCMACL acadt JOHN c WHITS CAM t NtLANOft A A LAUMiC J CONDO* JOCCLVM M SCOMfYl THOMAS A MOMTMMT* 4AMIS I MCCAMAAIDOC. LAUNCH MOTOLA-DAViSAC KCVWf A LOHAN DAAAXLL S SAKCA JA 0 MiCMACi A fAOCA PAUL t MiTCHCLL AOACAT M MAC* CAROlK a saaowsju MAAiA c OtlUtlO AJOITH A PCAAHANO oaancl a awAKf S1CPHCN p MAATCNAA raatn T MICKS ocoaoc j vooaim. jm DAVID W MCINLCM AUSTIN T POWCLL AlTA OYLTSOA AOACAT PCLLCOAAA JOYCC C DAVIS TAANCiS k iotO SHCAAl M AOSANSAVff CAROL A CMO CMAALCS M VCLCM jaucs m TAT** JOHN W MAVCATV SPCM * COvSV DS3TT 0 ftUAAt OACAT f fCCNCT SMSaw I MAttftTtMl AU J ftCVlNft * CLARA A3ACJTT P COOK Ctw^mA stonk pmclan C***tftrt J ChamOlCA NO ft MACLtOO CD L MASON. JW a A SCP30N L mu C_4**tTM M WATCATttLO fcA 0 CROAAA C*On A CNAtCNT w^C M4R*t RCCAM* M* A O SCAOl MO* W WICKCO C4 t MCCAULSV** IO*Vt M OalCSNC RLR <*A(L 0 JAMES <-<LA OTRAOCA ** t PROULS A OMallCt 4OICPM TLANACAN MU* P ROM *<ON M SOA OSANM OtPtCTAO CMRT c KICLV amt t luvtms ar*muh a f antao. ja C^P-STOPHIA A ACNNCT B*wO A NK7SC LAO MCMSCA OF rtCXHO* *A ALSO WCMSLR or MCW YORK RAM A MO U|MIM or MCW MtxtCO IU 1 MO MIMICR or tUPU AAA alAo mcmaca or haatvanq Aaa ALSO MCMSCA Or ARKANSAS AAA MO MCMACA OF MCW MAWPftMtAC AAA * MO MCMACA OT MajmC AAA A A ALSO M(iA9 OR *OOC WiAMO AaA AlCO MCI AO or WAftMtNOTON OC A** AMIS |*A * ALSO AAO 0S MOATH CAAOAAM AaA f| MCMACA 9 *C OlM AAA 0>Af ALSO IICI 1A or WASHINGTON OC AAA AAA ALSO MCMHEA O* CONNCCTO/T AAA AOO ALSO MCMSQ OT CLOACA Aa February 12, 1991 FEDERAL EXPRESS Janes H. Tourtelotte, Esq. Robinson, Donovan, Madden & Barry 1500 Main Street - Suite 1400 P.O. BOX 15609 Springfield, MA 01115 Re: Warren v. B.F. Goodrich, et al. C.A. No. 89-30201-F Our file no.: D-16183 Dear Mr. Tourtelotte: We acknowledge receipt of your letter dated January 9, 1991 ("the denand letter*), which purports to be a written demand for relief on behalf of your client, Alice L. Warren, pursuant to the provisions of G.L.c. 93A, 9. The B.F. Goodrich Company ("Goodrich*) believes the demand letter fails to "reasonably [describe] the unfair or deceptive act or practice relied upon and the injury suffered", as required by the statute. Further, based upon the information currently available to us, each of the rather conclusory factual allegations contained in the demand letter is subject to dispute. COOS 3 i MORRISON, MAHONEY & MILLER James H. Tourtelotte, Esq. Robinson, Donovan, Madden & Barry February 12, 1991 Page 2 The purpose of a demand letter under c. 93a, 9 is two fold: (1) "to encourage negotiation and settlement by notifying prospective defendants of claims arising from allegedly unlawful conduct4' and (2) "to operate as a control on the amount of damages which the complainant can ultimately recover.4' Spring v. Geriatric Authority of Holyoke, 394 Mass. 274, 288, 475 N.E.2d 727, 736 (1985), quoting gl.aney_.y_,. Westwood Auto, Inc. 366 Mass, at 704, 322 N.E.2d 768. To accomplish these purposes, it is essential that the complainant define the injury suffered and the relief demanded in a manner that provides the prospective defendant with an "opportunity to review the facts and law involved to see if the requested relief should be granted or denied" and enables him to make "a reasonable tender of settlement." Spring v- Geriatric Authority of Holyoke. 394 Mass, at 288, 475 nTf1at 736. quoting Slanev v, Westwood Auto. Inc.. 366 Mass, at 704-705, 322 N.E.2d 768 and York v. Sullivan. 369 Mass. 157, 162-163, 338 N.E.2d 341 (1975). The purposes of the letter are not accomplished if it fails to set forth the acts which constitute the unfair or deceptive practice claimed, see Entrialgo v. Twin City Dodge. Jn<?t, 368 Mass. 812, 813, 333 N.E.2d 202, 204 (1975), or if its demand for relief is exorbitant. See Spring v. Geriatric Authority Holvoke. 394 Mass, at 288, 475 N.E.2d at 736 (An exorbitant demand for relief "is hardly likely to promote negotiation and settlement or to operate as a control on damages.") The numbered paragraphs nos. 1-6 on pages 2-3 of the demand letter, which purport to describe the "unfair acts and deceptive practices" in which you allege Goodrich engaged, fail to set forth said acts or practices with any particularity. The language of the numbered paragraphs is more in the nature of the general allegations of wrongdoing made in plaintiff's complaint in the captioned action. The paragraphs identify no individuals, define no specific acts or omissions, and set forth no dates. The paragraphs do not even refer to any specific testimony taken or documents produced in the course of the ongoing discovery in the captioned matter. Given the generality of the allegations and the absence of any factual support therefor, Goodrich is unable to evaluate its potential liability. The demand letter is therefore insufficient. MORRISON, MAHONEY & MILLER James H. Tourtelotte, Esq. Robinson, Donovan, Madden & Barry February 12, 1991 Page 3 The letter's insufficiency is not cured by the allegations contained in the second and third paragraphs of page 4. We would be most interested in learning the factual foundation for your most serious allegation, i.e., that: B.F. Goodrich, along with the other members of the [Manufacturing Chemists' Association], 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. However, without more particular information as mentioned above, page 4's allegation remains merely an allegation. Furthermore, referring to page 3 of the demand letter, the description of the damages suffered by the decedent, Alice Warren (his wife and administratrix) and their two sons, Daniel and John (whose right to recover is not at all clear), lacks any of the specificity envisioned by the statute. While the letter alleges that Mr. Warren: was permanently disabled and suffered conscious physical and emotional pain and suffering ..., that [he] died as a result [of the actions complained of], and that [he] suffered loss of earnings and earnings capacity ..., it blatantly fails to specify the amount of his damages. Even should you argue that it is difficult to assign a specific value to his alleged pain and suffering, it is beyond dispute that "loss of earnings and earnings capacity" is quantifiable. But the demand letter offers no quantification. Similarly, while the demand letter contends that Mrs. Warren and her sons have suffered damages including "loss of reasonably expected net income, services, protection, care," etc., and "funeral and burial expenses and other incidental and consequential damages", it does not set forth the amount of these damages. While not all of the damages alleged are subject to precise quantification, most of them are and the remainder are subject to reasonable estimation. G00839 MORRISON, MAHONEY MILLER James H. Tourtelotta, Esq. Robinson, Donovan, Madden Barry February 12, 1991 Page 4 Lacking any itemization or enumeration of the damages alleged, the demand letter fails to accomplish its purpose: Goodrich cannot estimate the value of any potential liability and therefore has no foundation on which to base negotiations. Finally, the demand letter is inadequate in that, given its failure to set forth facts and its lack of any itemized damages, its demand for relief is exorbitant. Mr. Warren was in his sixties when he passed away and his only dependent was Mrs. Warren, herself well into middle age. Without extensive, well-defined special damages, it is hard to understand how the demand letter arrives at its two million dollar demand. Without much more factual support than is offered in the demand letter, such a demand is hardly likely to promote negotiation and settlement or to operate as a control on damages. Beyond the deficiencies of the demand letter, we feel that Goodrich will prevail on the merits. Discovery has thus far revealed no evidence establishing that Goodrich's VCM was delivered to the Indian Orchard plant, that John Warren was ever exposed to any Goodrich VCM at the plant, or that any such exposure caused his illness. Indeed, given the results of the only biopsy ever performed on Mr. Warren, even the diagnosis of angiosarcoma of the liver is very doubtful, especially in light of the unusually high incidence of other types of cancer in Mr. Warren's immediate family. The demand letter addresses none of these issues. Four further points must be made. First, the actions or omissions of which the demand letter complains took place no later than 1974. The applicable statute of limitations has run. Any claims plaintiff may attempt to assert pursuant to the provisions of c. 93A are time-barred. Also, to the extent that plaintiff complains of actions which occurred before the time of c. 93A's enactment in 1967, the statute is obviously inapplicable. Second, to the extent that plaintiff complains of actions that occurred during the effective period of c. 93A, $ 3(1)(b) (Repealed), Goodrich is exempt from liability under c. 93A. Section 3(1) (b), which was repealed on October 6, 1983, exempted a defendant from liability for transactions which occurred in interstate commerce if it derived at least twenty percent of its gross revenues from transactions in GG0H 40 MORRISON, MAHONEY & MILLER James H. Tourtelotte, Esq. Robinson, Donovan, Madden & Barry February 12, 1991 Page 5 interstate commerce and the transactions or actions complained of did not occur "primarily or substantially" in the Commonwealth. The statute's repeal in 1983 did not have retroactive effect. Goldstein Oil Company.--K.___Smith Company. Inc 20 Mass. App. Ct. 243 (1985) Third, the Supreme Judicial Court has expressly declined to rule on the validity of 940 Code Mass. Regs. 3.08(2) (1986), i.e., the Attorney General's regulation imposing liability under c. 93A solely on the basis of breach of warranty. MaiHet v ATF-Davldson.. Inc.. 407 Mass. 185 (1990). Therefore, the validity of the regulation is still open to question; Goodrich does not believe the regulation is appropriate and would challenge it, should a claim thereunder be made in the captioned action. Fourth, even if Goodrich furnished any VCM to which Mr. Warren was exposed, it did not furnish the VCM directly to Mr. Warren, but to his employer, Monsanto. Monsanto was a sophisticated user of VCM, produced the vast majority of the VCM used at Mr. Warren's workplace, had knowledge of the hazards of working with VCM as great or greater than Goodrich's, was responsible for Mr. Warren's working conditions and was in the best position to provide Mr. Warren with warnings, protective equipment, etc. Under these circumstances, if Monsanto failed to provide Mr. Warren a safe workplace, that failure cannot be imputed to Goodrich. It was reasonable and appropriate for Goodrich to rely upon Monsanto to care for the safety of its own employees. As a final note, we point out that we are in the first phases of discovery in the captioned action. It is simply too early in the process to be able to evaluate Goodrich's potential exposure. Should facts be developed through discovery which support the allegations contained in the demand letter and which indicate that the vital issues of product identification, exposure and causation will be determined in plaintiff's favor, we will be willing to reconsider the position set out herein. In sum, the demand letter does not comport with the requirements of c. 93A, 9; the information available to date does not establish or even indicate that Mr. Warren's condition was caused by exposure to Goodrich's VCM, which strongly suggests that Goodrich has a good defense on the merits; any claims plaintiff may attempt to assert under c. G00H4i MORRISON, KAHONEY & MILLER James H. Tourtelotte, Esq. Robinson, Donovan, Madden & Barry February 12, 1991 Page 6 93A are time-barred; the actions of which the demand letter complains are exempt from the strictures of c. 93A pursuant to c. 93A, 53(1) (b) (Repealed]; 940 Code Mass. Regs. $ 3.08(2) (1986) is of questionable validity; Goodrich has a "sophisticated user* defense available to it; and discovery is at a very early stage such that Goodrich's potential liability and plaintiff's damages cannot currently be assessed with any accuracy. Under these conditions, Goodrich cannot make any settlement offer. However, Goodrich is willing to reconsider its position if and when further facts are discovered. Very truly yours bcc: Ms. Jill Bryan Woodrow W. Ban, Esq. Joseph E. Rendini C t* 0 B A 2