Document JX19MZ23N269p39K7RzzzZzO

MILTON J. DONOVAN JOHN H MADDEN. JR EDWARD J BARRY GORDON H WENTWORTH JAMES H TOURTELOTTE CHARLES K BERGIN. JR VICTOR ROSENBERG RONALD C KIDD JEFFREY W ROBERTS JEFFREY L MCCORMICK JAMES M RA8BITT JAMES F MARTIN ROBERT P CUNNINGHAM JOHN C SIKORSKI NANCY FRANKEL RELLETIER ROBINSON DONOVAN MADDEN & BARRY. P.C. ATTORNEYS at law 1500 MAIN STREET - SUITE 1400 POST OFFICE BOX 15609 SPRINGFIELD. MASSACHUSETTS 01115 (413) 732-2301 FAX No. (413) 785-4658 January 9, 1591 RAUL S- WEINBERG HENRY C CROPSCY FREDERICA H McCarthy JAMES O S MORTON NEVA I KAUFMAN DOUGLAS F BOYD KEITH A. MINOFF JAMES K. BODURTHA KIMBERLY DAVIS CREAR ANNE SWIATEK MICHAEL T. KOQLTT JOHN W. LAKE JONATHAN P RICE EDMUND J. GORMAN MATTHEW J KING HOMANS ROBINSON 18SA-19T3 LAWRENCE M. SINCLAIR 1SA2-1SM bow Chemical Company c/o Sharon Burger, Esq. butter, ricClennan & Fish 1 International Place Loutun, fiA U2110 Re: John L. \ urren arc Alice L. Warren Lear Ms. burger: At you 'Knot:, thir law firm represents Alice L. barren in connection with claims brought my uer Administratrix c t:.c estate of her late husband, John L. I'arien, against the Dow v-llUICl! coni uny {"_.ow") caseC on Hr. warren's c-xiosure to vinyl chloride anc vinyl chloride related products sold or supplieu by Dow. Those claims are currently the subject of a civil action new pending in the United States District Court for the District oi Massachusetts, Alice L, warren, Acr.inistratrix cf the Lstate of John I7. Warren, Deceased v. The- Dow Chemical Co. et. al., Civil Action ho. B9-'C2Gi-B. This letter shall serve as a written demand ror relief pursuant to Chapter 93A, Section 9, brought on behalf of Mrs. Warren, both individually and as Administratrix of the Estate of John E. Warren. Mrs. Warren claims that the Dow Chemical Company sold or supplied John H. YJarren's employer, Monsanto Chemical Company, with vinyl chloride monomer and vinyl chloride related products, that Mr. V.arren was exposed to such products and that as a direct and proximate result, he became ill with angiosarcoma of the liver and diec of that disease on January 29, 1988. Mrs. Warren claims that her late husband's illness and death were as a result of unfair acts and deceptive practices proscribed by K.C.L. Chapter 93A. UCC 080966 MILTON J DONOVAN JOHN H. MADDEN. JR EDWARD J. BARRY GORDON H, WENTWORTH JAMES H TOURTELOTTE CHARLES K. BERQlN. JR. VICTOR ROSENBERQ RONALD C KIDD JEFFREY W, ROBERTS JEFFREY L, MCCORMICK JAMES M RABBITT JAMES F MARTIN ROBERT P. CUNNINGHAM JOHN C. SIKORSKI NANCY FRANKEL PELLETIER ROBINSON DONOVAN MADDEN & BARRY, P.C. ATTORNEYS AT LAW 1500 MAIN STREET - SUITE 1400 POST OFFICE BOX 15500 SPRINGFIELD. MASSACHUSETTS 01115 (413) 732-2301 FAX NO. (413) 755-4658 Ms Burger. January 9, 1991 page 2 PAUL S. WEINBERG HENRY C, CROPSEY FREDERICA H MCCARTHY JAMES O S MORTON NEVA l. KAUFMAN DOUGLAS F BOYD KEITH A MINOFF JAMES K. BOOURTHA KIMBERLY DAVIS CREAR ANNE SWIATEK MICHAEL T. KOGUT JOHN W. LAKE JONATHAN P. RICE EDMUNOJ GORMAN MATTHEW J. KING HOMANS ROBINSON IBM-1873 LAWRENCE M. SINCLAIR IMZ-IBBB Specifically, Mrs. Warren claims that Dew Chemical Company engaged in the following unfair acts and deceptive practices: 1. Dow was negligent in that it knew or should have known thac tht vinyl chloride products, including vinyl chlorice mcncrcr, which it manufactured ar.d/er supplieu to Monsanto were inherently and unreasonably dangerous and defective ty reason cf toxicity when ingested, breathed or absorbeu, 2. Dow knew or should have known that f'r. barren and otner similarly situated cncmical workers during tne usual course of their employment and through the ciumary torseeable use and processing of saiu vin^l chloride products and vinyl chloride monener would he exposed to and wq,u1 d inhale, absorb ar.c incest fumes ar.d vapors er-anat inn - from said products and chemicals on a regular basis. Dow was negligent in processing, testing, designing, r.ar.ufactur inc , distributing, marketing, supplying ano selling the saic; vinyl chloride products and vinyl chloride monomer. 3. Dow was negligent in failing to provide proper, adequate and correct warnings and instructions for proper and safe use concerning the dangers posed to the persons using, handling or exposed to their vinyl chloride products and vinyl chloride monomer, including Mr. V.'arren. 4. Dow was negligent in failing to properly test and investigate the dangers posed to chemical workers such as Mr. Warren by its vinyl chloride products and vinyl chloride monomer. 5. Dow was negligent in failing to reduce, minimize, eliminate or eradicate the health hazards posed by its vinyl chloride products and monomer. UCC 080967 MILTON J DONOVAN JOHN H MADDEN. JR COWARD J BARRY GORDON H WENTWORTH JAMES H, TOURTELOTTE CHARLES K AERGlN. JR. VICTOR ROSENBERG RONALD C. KIDD JEFFREY W ROBERTS JEFFREY L. McCORMlCK JAMES M RABSlTT JAMES F MARTIN ROBERT P CUNNINGHAM JOHN C SIKORSKI NANCY FRANKEL PELLETIER ROBINSON DONOVAN MADDEN & BARRY, P,C, ATTORNEYS AT LAW 1500 MAIN STREET - SUITE 1400 POST OFFICE BOX 15609 SPRINGFIELD, MASSACHUSETTS 01115 (413) 732-2301 FAX No. (413) 785-4658 Ms- Burger. January 9# 1991 page 3 PAUL S. WEINBERG HENRY C. CROPSEY FREDERl'JA H MCCARTHY JAMES O'S MORTON NEVA I KAUFMAN DOUGLAS F BOYD KEITH A. MINOFF JAMES K. BOOURTHA KIMBERLY DAVIS CREAR ANNE SW1ATEK MICHAEL T. KOGUT JOHN W. LAKE JONATHAN P RICE EDMUND J. GORMAN MATTHEW J. KING HOMANS ROBINSON iai-isn LAWRENCE M. SINCLAIR IS42.1SM 6. Dow breached express ano implied warranties cf mercliantability and fitness for a particular purpose in that the vinyl chloride products and monomer it supplied were not of merchantable quality, were unfit for their intended uses and were defective and unreasonably cangercus by way cf toxicity. tire, Darren claims that as a result of the unfair and ueceptive acts anu practices ccr.it.itteL. by Dow, as listed above, her late husband, John h. barren, oevelc.pec. ar.giosarcona cf the liver whica was first diagnosed in the SuLrer of 1907, tnat f:r. barren was permanently disabled and suffered conscious rhysical am emotional pain anu suffering until his ceatn on January 1:9, that Mr. barren died as a result cl ar giora rcora cf the liver, ana tnat tir. barren also surfereo loss of earnings and loss of earning capacity.,v. In audition, i.rs. barren claim? that as a result cf the foregoing unfair anu ueceptive acts anu practices engaged in by Dow, she and her two sons, Daniel and John, sustained uar.ages including but not limited to loss of reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice, pain, suffering and mental anguish, funeral and burial expenses and other incidental and consequential damages. You should be aware, if you are not already, that th Supreme Judicial Court of Massachusetts recently held in the case of Maillet v. ATF-Davidson Co., Inc., 407 Mass. 185 (1990), that wnere a business is founu both to have breached its warranty of merchantability, in addition to tort damages, tne business is also liable for an aware under G.b. c. 93A. The SJC cited regulations promulgated by the Attorney General providing that Tijt shall be an unfair or deceptive act or practice to fail to perform or fulfill any premises or obligations arising unuer a warranty." 940 Code Mass. Regs. UCC 080968 MILTON J, DONOVAN JOHN H MADDEN. J*. EDWARD J. BARRY GORDON H. WENTWORTH JAMES H. TOURTELOTTE CHARLES K. BEROIN. JR. VICTOR ROSENBERG RONALD C. KIDD JEFFREY W. ROBERTS JEFFREY L. MeCORMlCK JAMES M. RABBfTT JAMES F MARTIN ROBERT F, CUNNINGHAM JOHN C. SIKORSKI NANCY FRANKEL PELLETIER ROBINSON DONOVAN MADDEN & BARRY. P.C ATTORNEYS AT LAW 1500 MAIN STREET - SUITE 1400 POST OFFICE BOX 15609 SPRINGFIELD. MASSACHUSETTS 01115 (413) 732-2301 FAX NO. (413) 785-4658 fls. Burger January 9, 1991 page 4 PAUL S WEINBERG HENRY C. CROP3EY FREDERICA H McCarthy JAMES O'S. MORTON NEVA I. KAUFMAN DOUGLAS F BOYD KEITH A, MINOFF JAMES K. BOOURTHA KIMBERLY DAVIS GREAA ANNE SWIATEK MICHAEL T. KOGUT JOHN W. LAKE JONATHAN P. RICE EDMUND J. GORMAN MATTHEW J. KING HOMANS ROBINSON 1W4.1.73 LAWRENCE M. SINCLAIR 1M2-1MS $ 3.00(2) (19PC); Id. at 100. The Court noted in its opinion that Section 9 of Chapter 93A provides a cause of action to "any person . . . who has been injured by another person's use" of an unfair or deceptive trade practice. "We see no reason," said the Court, "to exclude injury to the person from the category of injuries cocniuable under G.L. Chapter 93A." Id. at 99. The EJC in hai1let also restated the rule that it is not a defense to a Chapter 93A claim that the defendant's conduct was negligent rather than intentional, citing Li nth icur v. Archambault, 37'-* hass. 3bl (1979). If the pending civil action were an ended to add claim? unoer Chapter 93A against the bow Chemical Company, firs. Warren v.-ci Id be entitled to recover up to two to three tires the damages sot forth above plus her attorney's fees cased cr. Low1 s willful and knowing violations of Chapter 93A, y 2. Cur investigation has already revealed that Dow, along with other vinyl chloride manufacturers, /.new as early as 1970 of the cancer-causing effects oi vinyl chloride exposure and intentionally withheld this information from governmental regulatory agencies such as NIOSH and from chemical workers such as Hr. Warren who were regularly exposed to vinyl chloride supplied by bow. More specifically, information which we have obtained shows that bow along with other chemical companies who were members of the Manufacturing Chemists' Association were privy to research studies conducted by an Italian researcher, Publio L. Viola, who hao announced at the Tenth International Cancer Congress in Houston, Texas in 1970 that his findings revealed that vinyl chloride exposure caused cancer in laboratory animals. Dow, 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 NXOSI! and from the general public for fear that it would have serious economic consequences for the vinyl chloride industry. In audition, as UCC 080969 t MILTON J DONOVAN JOHN H MADDEN, JR EDWARD J, BARRY GORDON H, WENTWORTH JAMES H TOURTEIOTTE CHARLES K BERGIN, JR VICTOR ROSENBERG RONALD C KIDD JEFFREY W. ROBERTS JEFFREY L McCORMlCK JAMES M. RABBITT JAMES F, MARTIN ROBERT P CUNNINGHAM JOHN C SIKORSKI NANCY FRANKEL PELLETIER ROBINSON DONOVAN MADDEN & BARRY, P.C, ATTORNEYS AT LAW 1500 MAIN STREET - SUITE 1400 POST OFFICE BOX 15609 SPRINGFIELD, MASSACHUSETTS 01115 (413) 732*2301 FAX No. (413) 785-4658 Ms. Eurger January 9/ 1991 page 5 PAUL S WEINBERG HENRY C CROPSEY FREDERICA H MCCARTHY JAMES O S MORTON NEVA I KAUFMAN DOUGLAS F. BOYD KEITH A. MiNOFF JAMES K. BODURTMA KIMBERLY DAVIS DREAR ANNE SW1ATEK MICHAEL T KOGLfT JOHN W. LAKE JONATHAN P RICE EDMUND J GORMAN MATTHEW J. KINO HOMANS ROBINSON 1 4.1973 LAWRENCE M. SINCLAIR 19A2-1M6 early as 15tl, a toxicologist employed by Dow Chemical, T.R. Torkelson, found that laboratory animals exposed to varying concentrations of vinyl chloride developed degenerative charges in their livers. The Viola studies reported nine years later served to confirm the TcrVelson findings. On bona If of I!rs . barren, we hereby demand tnat the L'ov: Chemical Company pay Two /iillion hollars ($2,000,000.) in fell setlenont of tnose claims. The statute requires that Low make a written tender of settlement within thirty days or receiving tins uemaiid for relief. Ve lock forward to your respcr.se. Sincerely, JnT/cjr/1477p James ti. Tourtelotte t. UCC 080970