Document J3w2B7DQx9o0Jv8OK1nJ0dg5B

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS EILEEN A. DUNN, Executrix of the Estate of William F. Dunn, deceased, and in her own behalf; and CAROLINE M. DUNN, Plaintiffs, v. MONSANTO COMPANY; THE DOW CHEMICAL CO.; THE B.F. GOODRICH CO.; GREAT AMERICAN CHEMICAL CORP., Defendants. _______________ _) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 85-0377-F DEFENDANTS' JOINT MOTION FOR SANCTIONS The defendants, Monsanto Company, The Dow Chemical Company, and the The B.F. Goodrich Company, hereby move this Court to assess costs, fees, and other sanctions against plaintiffs' counsel, Silverglate, Gertner, Baker, Fine and Good, pursuant to Rule 11 of the Federal Rules of Civil Procedure. As grounds for their motion, the defendants have set forth the relevant facts and applicable law in their accompanying memorandum, and also state as follows: 1. On August 8, 1985, Nancy Gertner, plaintiffs' counsel, instituted the within action on behalf of Eileen A. Dunn, individually and as executrix of the estate of William-A. Dunn (the "decedent"), and Caroline M. Dunn GACC 00286 ("plaintiffs"). Eileen A. Dunn is the decedent's widow; Caroline is his daughter. The amended complaint alleges that on December 14, 1980, Mr. Dunn, a former employee of defendant Monsanto Company, died as a result of his exposure td~pdlyvinyl~chloride {""PVC") and vinyl chloride ("VC"), allegedly manufactured and supplied by the other defendants. Amended complaint, introductory para. 2. Plaintiffs_assert that their claims are.timely; notwithstanding a three-year statute of limitations, because, they allege, they "did not know of the association between [Mr.. Dunn',,s] cancer and his exposure to VC and PVC until less than three years prior to initiating this action (on August 8, T9~B5T" * Amended complaint, Para. 8. 3. Defendants have discovered evidence indicating that the above quoted allegation is false. In December of 1981, more than three and one half years before the commencement of the present action, three worker's compensation claims (against three of Monsanto Company's insurance carriers "on the risk" during the period of Mr. Dunn's employment) were filed by Eileen A. Dunn, through counsel, each of which expressly stated, in response to the question "How did injury occur?," that it had occurred by "repeated exposures to and aggravation by materials at work, including polyvinylchloride". (emphasis added). See Exhibit B to Affidavit of Philip A. Brooks, Esquire, filed herewith. 2 GACC 00287 4. Defendants have also obtained copies of correspondence, together with an accompanying affidavit, indicating that Nancy Gertner, plaintiffs' counsel in the present action, was acting during 1983 and 1984 as counsel for Eileen A. Dunn in connection with the above worker's compensation claims. Thus, prior to bringing the present action in August 1985, Ms. Gertner well knew (or in the alternative is charged with the knowledge that a minimum reasonable inquiry would have disclosed) that plaintiff Mrs. Dunn had become aware of the possible alleged association between Mr. Dunn's cancer and his exposure to polyvinyl chloride more than three years prior to the commencment of the present action. See Affidavit of Philip A. Brooks, Esquire. 5. In violation of both Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. 1927, plaintiffs' counsel brought the present action on behalf of Eileen A. Dunn based upon false and unfounded factual allegations, and have thereby unjustifiably caused the defendants to incur substantial costs in the defense of a meritless action. WHEREFORE, defendants move: (1) That plaintiff's counsel be adjuded in violation of Rule 11 of the Federal Rules of Civil Procedure and Of 28 U.S.C. 1927; -3- GACC 00288 (2) ..That, the Court impose, such sanctions upon plaintiffs'-counsel as will reasonably recompense i: : . .defendants for.their costs; and ..-(3) That the,Court, grant such other and further relief as is just and equitable. THE DOW CHEMICAL COMPANY By .its attorneys MONSANTO COMPANY By its attorneys,: THE B.F. GOODRICH COMPANY By L Allan van Gestel . Timothy J. LangelVfi'' GOODWIN,_FR0CTERHOAR 28 State Street Boston, MA 02109 (617) 523-5700 Thomas W. Porter, Jr. Robert P. Powers MELICK_&.PORTER 11 Arlington Street Boston, MA 02116 (617) 267-7502 4 GACC 002S9 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS EILEEN A. DUNN, Executrix of the Estate of William F. Dunn, deceased, and in her own behalf; and CAROLINE M. DUNN, Plaintiffs, V. ) ) ) ) ) ) ) ) ) MONSANTO COMPANY; THE DOW CHEMICAL CO.; THE B.F. GOODRICH CO.; GREAT AMERICAN CHEMICAL CORP., ) ) ) ) Defendants. > ) ----------------------------------------------------------------------------- ) Civil Action No. 85-0377-F MEMORANDUM IN SUPPORT OF DEFENDANTS' JOINT MOTION FOR SANCTIONS Statement of Facts On August 8, 1985, Eileen A. Dunn, acting as executrix of the estate of William F. Dunn and on her own behalf, and Caroline M. Dunn brought suit against the defendants Monsanto Company ("Monsanto"), The Dow Chemical Company ("Dow"), The B.F. Goodrich Company ("B.F. Goodrich") and Great American Chemical Corporation, seeking $25,000,000 in damages in connection with Mr. Dunn's death on December 14, 1980. Eileen A. Dunn is the decedent's widow; Caroline is his daughter. Plaintiffs claim that Mr. Dunn died of lung cancer resulting from his long-term occupational exposure to polyvinyl chloride ("PVC") and vinyl chloride ("VC"), GACC 00290 substances allegedly supplied to Mr. Dunn's employer, Monsanto, by the other d fendants. The amended complaint includes the statement that "plaintiffs did not know of the association between [Mr. Dunn's] cancer and his exposure to VC and PVC until less than three years prior to initiating this action." Amended Complaint, para. 8. Defendants have discovered evidence that the above statement was false, and that as early as 1981 plaintiff Eileen A. Dunn was of the view that there existed an alleged causal connection between the decedent's cancer and his exposure to VC and PVC. Three worker's compensation claims were filed by Eileen A. Dunn, through counsel, on December 11, 1981.1 These claims expressly alleged that Mr. Dunn's death occurred by "repeated exposures to and aggravations by materials at work including polyvinylchloride." (emphasis added) See Exhibits A and B to Affidavit of Philip A. Brooks ("Brooks Affidvit"), filed herewith. An earlier letter from Eileen A. Dunn to Monsanto, dated April 29, 1981, had requested documents concerning her husband's exposure to occupational chemicals, including PVC. See Exhibit C to Brooks Affidavit. Separate claims were apparently filed against each of Monsanto's worker's compensation carriers "on the risk" during the years of Mr. Dunn's employment -- Liberty Mutual Insurance Co. (Exhibit B-l to Brooks Affidavit), Travelers Insurance Co. (Exhibit B-2), and INA (Exhibit B-3)-. -2- GACC 00291 With respect to the same worker's compensation claims alleging the causal association between PVC exposure and Mr. Dunn's death, defendants have obtained copies of correspondence between Philip A. Brooks, counsel for both the insurer (Travelers Insurance Company) and the employer (Monsanto) in the worker's compensation matter, and Nancy Gertner, plaintiffs' counsel in the present action. This correspondence includes (1) a letter dated February 9, 1984 from Mr. Brooks to Ms. Gertner indicating that Mrs. Dunn's 1981 workmen's compensation claims had been filed by another attorney "on your [Ms. Gertner's] behalf," and (2) a letter dated April 25, 1984 from Ms. Gertner to Mr. Brooks, discussing the scheduling of various depositions and the trial date in the same workmen's compensation matter. See Exhibits D and E to Brooks Affidavit. It is apparent that Mrs. Dunn believed, as long ago as 1981, more than three years before commencement of the present action, that she had enough information which led her to believe that there was an alleged causal connection between PVC exposure and her husband's cancer to warrant making this the basis of three worker's compensation claims. It is also apparent that prior to commencing the present action in August 1985, Nancy Gertner, who had during 1983 and 1984 acted on Mrs. Dunn's behalf in connection with these same worker's compensation claims, knew about these claims, knew about their attribution of Mr. Dunn's death to "repeated exposures to . . . polyvinylchloride" (or in the -3- GACC 00292 alternative is charged with the knowledge that even a minimum reasonable inquiry would have disclosed), and therefore knew at the time of filing suit that there was not "well grounded" factual support (Fed. R. Civ. P. 11) for the allegation in the plaintiffs' amended complaint that "plaintiffs did not know of the association between [Mr. Dunn's] cancer and his exposure to VC and PVC until less than three years prior to initiating this action." Amended Complaint, para. 8. Argument Under Rule 11 of the Federal Rules of Civil Procedure, as amended in 1983,2 a defendant is entitled to an award of attorneys' fees if a plaintiff brings or maintains an unfounded action in bad faith or without making a reasonable Rule 11 provides in pertinent part: The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. Fed.- R. Civ. P. 11 (emphasis added). 4 GACC 00293 inquiry into the operative facts.3 Mohammed v. Union Carbide Corp., 606 F. Supp. 252, 260 (E.D. Mich. 1985); see also Nemeroff v. AbeIson, 704 F.2d 652 (2nd Cir. 1983) (prior to the 1983 amendment of Rule 11, bad faith was primary ground for imposing sanctions); accord. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259 (1975). "'Bad faith' is evident where a party's claims are entirely without color and made for reasons of harrassment or delay or for other improper purposes." Nemeroff v. Abelson, 620 F.2d 339, 348 (2nd Cir. 1980). What constitutes a "reasonable inquiry" depends "largely on the particular facts and circumstances of a given claim." Mohammed v. Union Carbide Corp., 606 F. Supp. at 261. In the present case, there is ample evidence that, prior to the filing of the original complaint, plaintiffs' counsel knew -- or should have known upon the slightest reasonable inquiry -- that Eileen A. Dunn had attributed her husband's death to polyvinyl chloride in December 1981 (more than three years before commencement of the action), and that accordingly her action was time-barred, even if one were to An alternative ground for the within motion is found in 28 U.S.C. 1927, which provides for sanctions against an attorney who "multiplies the proceedings in any case as to increase costs unreasonably and vexatiously." Roadway Express, Inc, v^ Piper, 447 U.S. 753, 758-760 ( ). Sanctions under Section 1927 have been applied in instances similar to the present one. See Van Berkel V- Fox Farm and Road Machinery, 581 F. Supp. 1248 (D. Minn. 1984). -5 GACC 00294 apply the novel "discovery rule" proposed by the plaintiffs. Sanctions are therefore appropriate. Courts have regularly dealt with cases such as the present one by assessing both costs and attorneys' fees. In a case directly on point, Van Berkel v. Fox Farm and Road Machinery, 581 F. Supp. 1248 (D. Minn. 1984), the plaintiffs filed a personal injury suit claiming that the injury occurred within the applicable six-year period of limitation. When the defendants uncovered clear evidence that the injury had occurred nearly one year prior to the six-year limit, they moved to dismiss the action and for sanctions. In granting both motions and assessing costs and attorney's fees, the court held that plaintiff's counsel had violated Rule 11 by failing to "make a 'reasonable inquiry' upon which to base a belief that the allegations of the complaint were true." Id. at 1251. Plaintiff's counsel was also found in violation of 28 U.S.C. 1927 because he "unjustifiedly failed to dismiss th[e] lawsuit after learning that it was barred by the statute of limitations." Id. In a similar case, Huettig & Schromm v. Landscape Contractors Council. 582 F. Supp. 1519 (N.D. Cal. 1984), . plaintiffs brought a suit which on its face was meritless. The court dismissed the complaint and awarded sanctions in the form of the defendant's costs and attorneys' fees. In language appropriate to the present case, the court condemned the conduct of plaintiff's counsel: - 6- GACC 00295 Rule 11 is a response to a widely felt need to end abuse of the litigation process such as occurred here. If the Court were to tolerate this kind of conduct, the capacity of the judicial system to serve the ends of justice would soon become impaired. Sanctions must therefore be imposed by the Court but counsel should realize that the heaviest sanction they will suffer is the one they have inflicted on themselves -- loss of the courts' confidence in their probity. Huettiq & Schromm v. Landscape Contractors Council, 582 F. Supp. at 1522. In the present case, Mrs. Dunn's 1981 request for chemical exposure information from Monsanto, her 1981 filing of workmen's compensation claims based on exposure to PVC, and the 1984 letters to and from Ms. Gertner, collectively demonstrate that Ms. Gertner knew or is charged with knowing that the key allegations of the complaint were not "well grounded in fact" and that Mrs. Dunn's action was barred by the statute of limitations before she brought it. Even if Ms. Gertner did somehow believe that a valid claim existed, sanctions would nonetheless be appropriate due to the absence of an objective basis for the belief. Mohammed v. Union Carbide Corp.. 606 F. Supp. 252, 260-262 (E.D. Mich. 1985) (Rule 11 sanctions granted where plaintiff's attorney failed to make reasonable inquiry into the facts); Wells v. Oppenheimer & Co.. 101 F.R.D. 358, 359 (S.D.N.Y. 1984) (Court may impose sanctions where there is no objective basis for an attorney's belief that his client's claims are well grounded in fact.). -7- GACC 00296 In light of the improper institution of this action, and the substantial time and money which Ms. Gertner knew the defendants would spend in defending it, sanctions of attorney's fees and costs are appropriate. Peltier v. Peltier. 548 F.2d 1083 (2nd Cir. 1977); Miller v. Affiliated Financial Corp., 600 F. Supp. 987, 991 (N.D. 111. 1984). Conclusion For the foregoing reasons, the Defendants' Joint Motion For Sanctions should be allowed. THE DOW CHEMICAL COMPANY By its attorneys. THE B.F. GOODRICH COMPANY By its attorneys. Lane McGoVerh Paul V. Kell1 Ropes & Grai 225 Franklin' Boston, MA 02110 (617) 423-6100 MONSANTO COMPANY By its attorneys. OD . Thomas W. Porter, Jr. Robert P. Powers Melick & Porter 11 Arlington Street Boston, MA 02116 (617) 267-7502 Allan van Gestel Timothy J. Langellr^ Goodwin, Procter & Hoar 28 State Street Boston, MA 02109 (617) 523-5700 -8- GACC 00297 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS EILEEN A. DUNN, Executrix of the Estate of WILLIAM F. DUNN, Deceased, and in her own behalf; and CAROLINE M. DUNN Plaintiffs, v. MONSANTO COMPANY; THE DOW CHEMICAL COMPANY, B.F. GOODRICH CO.; GREAT AMERICAN CHEMICAL CORP. Defendants. CIVIL ACTION No. 85-0377-F AFFIDAVIT OF PHILIP A. BROOKS, ESQUIRE I, Philip A. Brooks, do hereby depose upon oath and say; 1. I am a partner at the law firm of Brooks, Mulcahy & Sanborn, with offices at 1387 Main Street in Springfield, Massachusetts. I have been a member of the Massachusetts Bar since 1957. 2. In April 1982, I was retained by Travelers Insurance Company ("Travelers") on behalf of Monsanto Company ("Monsanto") in connection with Monsanto's defense of a. workers' compensation claim filed with the Massachusetts Division of Industrial Accidents by Eileen Dunn, widow of William F. Dunn, on or about December 11, 1981. In that claim, Mrs. Dunn alleged that the cause of William Dunn's GACC 00298 2 injury and death was "repeated exposures to and aggravation by materials at work, including polyvinylchloride." Copies of the workers' compensation claim forms filed on behalf of Eileen Dunn are attached as Exhibits "A" and "B". 3. During the course of the workers' compensation proceedings, I received from Monsanto a copy of a letter from Eileen Dunn to James Shriver, a Monsanto employee, dated April 29, 1981, which requested that Monsanto provide her with records regarding William Dunn, including medical records and x-ray films, data regarding jobs and exposure to chemical substances while performs those jobs, and material safety data sheets. The letter specifically refers to the chemical substrance "PVC"--(polyvrnyichlori-de-). A copy of this letter is attached as Exhibit "C". 4. On February 9, 1984, I sent a letter of the same date to Nancy Gertner, Esq., attorney for Eileen Dunn in her workers' compensation claim against Monsanto, regarding the status of the case. On or about April 27, 1984, I received a letter from Ms. Gertner dated April 25, 1984, which further discussed the status of Eileen Dunn's workers' compensation action. A copy of these letters are attached as Exhibit "D" and Exhibit "E," respectively. 5. The filing of the workers' compensation claims and the exchange of correspondence among Eileen Dunn, Nancy GACC 00299 3 Gertner, Monsanto and myself took place before Ms. Gertner filed the instant action on behalf of Ms. Dunn. I declare under the penalty of perjury that the foregoing is true and correct. EXECUTED on October , 1985, in Springfield, Massachusetts. Philip A. Brooks GACC 00300 Maryel T loife William H. Troupe William J. McCarthy, |r. Caiolynn N. Fiichel Ceorgt T. Strzeleliki Thomas A.'Bo'yle'fll Richard S. Dutka Bertram A. Pelkun 1906-1978 Exhibit A PETKUN & LOCKE, Inc 40 Court Street. Suite 510 Boston, Massachusetts 02108 (617) 742-7146 s.vv.n. December 11, 1981 Insurer: Travelers Insurance Co. 120 Maple Street Springfield, MA Employee: William F. Dunn (dec'd) Employer: Monsanto Chemical Co. Insurer: Travelers Insurance Co. IAB# Insurer# _____________________ ________________ Date of injury: March 1, 1971 to April 1, 1978 Gentlemen: Kindly note our appearance for the employee and the enclosed correspondence sent this date to the Industrial Accident Board. In accordance with G.L. c. 152, 7B, 20, 20A, and 45, will you please send us copies of your medical reports and any signed statements of the employee. Please return a completed copy of IAB form 31 to this office. Thank you for your cooperation in this matter. Very truly yours, WJM:jmd enclosures GACC 00301 cc: Edward T. Dangel, III, 60 State Street, Boston, MA 02109 Exhibit B-J. Zflij? (Enmmmuncaltfj af fHaBBurfyuBrttB DIVISION OF INDUSTRIAL ACCIDENTS LEVERETT SALTONSTALL BUILDING GOVERNMENT CENTER, 100 CAMBRIDGE STREET BOSTON, MASSACHUSETTS 01202 WORKMEN'S COMPENSATION ACT: GENERAL LAWS (TER. ED.), CHAPTER 152 William F. Dunn (dec'.d) . . Monsanto Chemical Co. Board Number: [Insurer (Self-Insurer): Liberty Mutual 'Insurance Co. lniu^Numbl CLAIM -- REQUEST -- APPEARANCE NoUt Tbe original of (his form must be completed ind filed with the Division and three (^) copies thereof must he sent to the insurance company or self-insurer. Failure to comply with this procedure will result in (felayrd action on t) employees claim and request. Claim should be made within one year after the injury. General Laws, Chapter 112. Sections 41 and 49. TO BE COMPLETED BY EMPLOYEE (OR PERSON /W HIS BEHALF) 1. Date and Time of injury . .. , , February 28, 1955 to March 1, 1971 2. Place of injury (Deacribe Building, Prtntiae*. Addrta) .. employer's premises: Monsanto Ave. ........................................................................................................ Indian Orchard, MA L How did injury occur? (Deacribe in deoil) . ............... repeated exposures to and aggrayat ..................................................................................--.by materials at work, including - ........................................... polyvinylchloride ............................. 4. Thea and to whom did you report injury?................................... i. State nature of injury . ..adenocarcinoma, fatal, c/h/a by above exposur 6. la hearing requested it this time? (Chock): Ye* ( X ) No ( ). . & aggravations 7. If hearing it requested, indicate period() of compensationcLimed (such as total, partial.total usd permanent, tptcif'n pendency), or other reaaon for Request fat-al benefits under Sections 31, 33 & 36A fre 12/14/80 and continuing . ' ................................ APPEARANCE OF COUNSEL/ IN ASSOCIATION WITH: ELI FEU DUNN (widow) Petkun & Locke, Inc. / Edward T. Dangel, III, -- her.att (Signature of Attorney) Esq. (Signatur Employe* or Claimant) 40 Court Street........ / 60 State Street . (Street and Number) 74 Orchard.Street. (Street and Number) Boston, MA., 02108.., /. Boston, MA 02109 (City or Town) Westfield, MA .01085 (Gty or Town) . 742-7146 227-8200 (Telephone Number) December 11, 1981- (Date of Claim) INSURER'S REPLY Nn/r: Within 21 Jays of the recrlpt of this Claim, the Inrurtr or Self-Insurer mutt complete this porti n, in triplicate, for ing one copy to the Division, erte copy to the employee (or hit roemrl, if any), and retain one copy. A. Inturrr Admitit (Check or Insert) B. Inturrr Dritirt: (Check or Insert) 1. Personal Injury 1. Personal Injury 2. Disability- From 2. Disability From To To ). Causal Relation ). Causal Relation 4. Dependency 4. Proper Notice 1. Other GACC 00302 J. Proper Claim (. Other BY ' A II S) ( Exhibit B-3- OJnmmnmuPmtl] nf fHaBBarfyuBfUa DIVISION OF INDUSTRIAL ACCIDENTS LEVERETT SALTONSTALL BUILDING GOVERNMENT.CENTER, 100 CAMBRIDGE STREET BOSTON, MASSACHUSETTS 02102 WORKS!EN'S COMPENSATION ACT: GENERAL LAWS (TER. ED.), CHAPTER 152 Employ**.- William F. Dunn (dec'd) Employer: Monsanto Chemical Co. . .. Insurer (Self-Insurer): Travelers Insurance Co. Board Number: Insutcr'i Number: CLAIM -- REQUEST -- APPEARANCE Nolr: Tbe original of thii form mult be completed ind filed with the Diviiion and three (^) copier thereof mult be tent to the iniunncr company or self-insurer, Failure to comply with thii procedure will retult in delayed action on the employee'! claim and requeat. Claim ahould be made within one year after the injury. General Lawa, Chapter 112. Section! 41 and 49. TO BE COMPLETED BY EMPLOYEE (OR PERSON IN HIS BEHALF) 1. Dateand Tim. Of Injury ' March 1, 19?1 to April 1, 1978 2. Place of Injury(Deocribe Building, Premierj, Addreta) ................... employer S pTemisas: Monsanto AVS . , Indian Orchard, MA .................... i. Mow did injury occur? (Deocribe in detail) ...... repeated exposures to and aggravatic .... ...........................by.materials at work, including -- ....................................... polyvinylchloride ..................... 4. Vhen and to whom did you report injury? ................... i. State nature of injury adenocarcinoma, fatal, c/h/a by above exposures & < It hearing requeued at thi time? (Chech): Ye* ( X ) No ( ). aggravations 7. If hearing it requested, indicate period(i) of compenutioo claimed (such il total, partial,total and permanent, specific, di pendency), or other tenon /or Request fatal benefits under Sections 31,. 33 and from 12/14/80 and continuing ......................................... EILEEN- DUNN (wiclow)_ APPEARANCE OF COUNSEL / IN ASSOCIATION WITH: Petkun .jSc Locke, Iric . 7 Edward T. Dangel, III,. _ BY: 36A r atty (Signature of Attorney) Esq . 40 Court Street "/ 60 State Street (Signature ofatxnpkiyM or Claimant) 74 Orchard Street. (Street and Number) Bostoiv MA - 02108 / Boston, MA 02109 (City or Town) (Street and Number) u Westfield, MA .01085 (Gty oe Town) 742-7146. /.. .227-8200 (Telephone Number) December 11, 1981 . (Date of Claim) INSURER'S REPLY Note. V.thin 21 day. of the receipt of thi. Claim, the Imurer or Self-In.urer must complete thii portion, in triplicate, forward ing one copy to the Division, one copy to the employee (or bit counsel, if **y), and retain one copy. A. /niurrr Admiti: (Check or Insert) 1. Personal Injury 2, Disability From To J. Ousal Relation 4. Dependency 1. Other .... Insurer Denier: (Check or Insert) 1. Peraonal Injury 2. Disability From To J. Causal Relation 4. Proper Notice I. Proper Claim i. Other GACC 00303 BY TT Tt C Exhibit 3-3 t CCnmmanmraltf? of fHaaaarfyusrlta DIVISION OP INDUSTRIAL AoaDENTS leverett saltonstall building * f GOVERNMENT CENTEX, 100 CAMBRIDGE STREET BOSTON. MASSACHUSETTS 02202 * WORKMEN'S COMPENSATION ACT: GENERAL LAWS (TER. ED.). CHAPTER 152 Employee William'F. Dunn (deeM)............. Employer: Monsanto Chemical Co....................... Burd NumW: Insurer (Self.Iiuurer): INA ............................. Insurer'* Number: CLAIM -- REQUEST -- APPEARANCE NoIn The original of :Ki form miut be eompUtwl and filed with the Divirion and three }) copic* thereof mutt l* tent to the tniurance company or tclf-insurcr. Failure to comply with thi procedure will mult in delayed action on iW employee'* claim and requett. Claim should be nude within one year after the injury. General Lawa. Chapter HI, Sections 41 and 49. TO BE COMPLETED BY EMPLOYEE (OA PERSON IN HIS BEHALF) 1. Date and Time of Injury..................... .......................... April 1> 1978 tO June 13, 1978- 2. Place of Injury (Describe Building, Premise*, Addrae) employer's premises: Monsanto AveilUe , ..................... .............................. ..............................Indian Orchard, MA .. - *... j. How did injury occur? (Describe ia detail) . '........repeated exposures to and aggravations ................................................................................... by..materials.-at work, including.................. ___ ... ............................................... polyvinylchloride .......................................... 4. When and to whom did you report injury!.......................................... ................ I. State nature of injury adenocarcinoma,. fa.taLr c/h/a by above exposures and * t. It hearing requested at thi* time! (Check): Ye* (X) No ( ) aggravations 7. If hearing it requested, indicate period (l) of compensation claimed (rush a: total, partial, total sad permanent, apeerfic, < pendency), or otlwr reason for Request . .benefits .under Sections 3.1, .33 &.36A from i.2/14/80 and continuing .................................. APPEARANCE OF COUNSELf IN ASSOCIATION WITH: Petkun & Locke, Inc. / Edward T.. .Dangell, III (Signature of Attorney) Esq. .BY: ...her. atty or Claimant) * ,40 Court Street......./. fiQ.State.Street .. (Street and Number) .Boston,. MA 02108.. ./ .Boston.,. Ml 02109 ........... fCcy or Town) .742-7146 . /, 227-8200. ... (Telephone Number) 74 Orchard Street ; (Street and Number) Westfield, MA . -01085 (Gry or Town) December 11,.1981 . (Date of Claim) INSURER'S REPLY No/r: Vithin 21 Jay. of the recrip* of thi* Claim, the Insurer or SdMnmrer mu.t complete thi. portion, in triplkat*. forwa,. ing on. copy to the Divirion, one copy to the employe, (or ha roW, ,/ e.y), and retnn one copy. A- Inturrr Admiltt (Check or Insert) l. Perwnal Injury . B. future? Denier: (Check or Inacrt) 1. Ptriona! Injury 2. Disability From To 2. Disability From To J. Causal Relation I. Causal Relation 4. Dependency 4. Proper Notice J. Other I. Proper Claim <. Other GACC 00304  April 29, 1931 Mr. J Konsa 730 W Indian Orchard, Mans. 01151 '* * -- : . .** Dear Mr. Shriver: * ' * * Under Regulation 20C.F.R. 1910.20', I write to request copies of the following records of my late husband, William ^F. Dunn: \ _ , . / _ ; . jfl Medical records, including X-ray film .......... 2 Exposure monitoring results,... _ < t; ^ i?3 . Jobs held and dates. Chemical substances exposed to while working at f/"3} above ' 1 ~'" (i.e.) styrene, PVC Departments, Pilot Plant, plant labs, _etc. ` #5 Material Safety Data Sheets } Thanking you in advance for your helpfulness. cc: OSKA /Z $ GACC 00305 / K Exhibit D ClAPCMCC p a<JOK*-IOOM70 Philip a spoors Cueext J. MULCAMT OAVIO W. SAHSONH H. OPtCOPT WILLIAMS BROOKS, MULCAHY & SANBORN COUNSELLORS AT LAW oar maim stpeer SPRINGFIELD, MASSACHUSETTS OllOS SUITE Sll ThiPO national Sank 6UU.0IN0 TELEPHONE 4I]P}1 lias February 9, 1984 L Atty. Nancy Gertner Silverglate, Gertner, Baker & Fine 88 Broad Street Boston, ma^ n?110 Re Willi am Dunn^x ' Monsanto Company Travelers, Liberty & INA Dear Ms. Gertner: Employee Employer Insurers This case, which was originally filed by Mr. Locke's office on your behalf back in December of 1981, is now on a Holyoke list to be assigned for hearing during the week of February 21, All four claims against the three insurers appear as case #34 on that list. Although Atty. McCarthy of the Petkun and Locke office is still listed as counsel for the claimant, I note that you were aware of their withdrawal back in August of last year, at which time you requested that the case be taken off Commissioner Cleary's August 29 list while you secured other trial counsel. At our meeting back on November 28, I believe you indicated that Atty. Novick would be handling this case. As counsel for the Travelers (in place of Mr. Guinan who is listed), I would be glad to serve as liaison to the other defense counsel to work out an agreeable hearing date for the week of February 21. I notice that by assigning four commissioners to Holyoke for that week, the Board is making a determined effort to clear up the Holyoke backlog and that hearings are expected to "go forward without any postponements." GACC 00306 4 - / .4 * BROOKS. MULCAHY & SANBORN Atty. Nancy Gertner -2- February 9, 1984 I look forward to hearing from you on an agreeable date. If you have decided not to pursue this claim, we would appreciate your advice as soon as possible so that we don't waste time in needless preparation. Very truly yours, PAB/lap cc: GharlesJ^-Brids Esq. Edward V, Leja, Esq. bcc Mr. Chester P. Strzepa Mr. Ronald J. Maier Philip A. Brooks GACC 00307 V Exhibit E SILVERGLATE, GERTNER, BAKER & FINE attorneys-at-law I Harvey A. Silverglate Nancy Certner ' Jeanne Baker David J. Fine Judith H. Mizner , Susan P. Sturm Gail S. Slrassfetd David L. Kelston April 25, 1984 Fifth Floot 88 Broad Screei Boston, Massachusetts 021U Phone (617) 542-6662 Philip A. Brooks Brooks, Mulcahy & Sanborn 1387 Main Street Springfield, Massachusetts 01103 Re: William Dunn, v. Monsanto Chemical Dear Mr. Brooks: I wanted to write to you with respect to the above entitled case, so as to forestall any scheduling problem. As you must have realized by now, I am interested in having these cases tried as soon as we can, but have only requested that that be done in an orderly fashion. In the meeting that we had in Commissioner Martin's office several months ago, I had understood you to agree with my position and that of Ms. Emily Novick that the Dunn case should be tried after the Bycenski case. We had come to that conclusion for several reasons: first, it was anticipated that the Bycenski case would involve some of the same issues as the Dunn case and therefore it would make sense to take those depos itions and that testimony only once. We could then adopt those portions of the Bycenski record which were appropriate to Dunn. Second, these cases were very complicated and entailed a consid erable amount of work. In the interest of resources, we suggested that one case be tried after the other. I walked away from that meeting assuming that you agreed. If you do, I will get in touch with the Industrial Accident Board to make those arrangements. I plan to be at the deposition at Ms. Novick's office next week, so that perhaps we can confer on that occasion. Edward Guinan Charles Brids GACC 00308 CERTIFICATE OF SERVICE I, Paul V. Kelly, one of the attorneys for def' Dow Chemical Company, hereby certify that on this i served a copy of the within responsive pleadings ai motions, on all parties to this action, by sending the same, by first-class mail, postage prepaid, to Nancy Gertner, Esq. Keith S. Halpern, Esq. Silverglate, Gertner, Baker -- Fine _______ 88 Broad "Street Boston, MA 02110 Allan van Gestel, Esq. Timothy.J. Langella, Esq. Goodwin, Procter & Hoar : 28 State Street Boston, MA 02109 Thomas W. Porter, Jr., Esq. Robert P. Powers, Esq. Melick & Porter . Eleven Arlington Street Boston, MA 02116 Dated: November 8, 1985 (617) 423-6100' GACC 00309