Document QrzoMg5XLwNJxOD1obv7yBOo

' b. * UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. JHT BBO NO. 500800 KAM BBO NO. 551536 bJ\ fcUU' ALICE L. WARREN, Administratrix of the Estate of John H. Warren, Deceased, Plaintiff VS. THE DOW CHEMICAL COMPANY, B.F. GOODRICH COMPANY, WHITTAKER DEVELOPMENT CO., (formerly GREAT AMERICAN CHEMICAL CORPORATION), UNION CARBIDE COMPANY, AMERICAN CYANAMID CORPORATION and CONTINENTIAL OIL COMPANY, Defendants AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, Alice L. Warren, Administratrix of the Estate of John H. Warren, deceased, for her complaint against defendants, The Dow Chemical Company, B.F. Goodrich Company, Great American Chemical Corporation, Union Carbide, Inc. and American Cyanamia Corporation, hereby states as follows: THE PARTIES -1. Plaintiff, Alice L. Warren, is the widow and Administratrix of the Estate of John H. Warren, deceased, and is an individual residing in Springfield, Hampden County, Commonwealth of Massachu setts. 2. Defendant, The Dow Chemical Company, is a corporation which is incorporated in the State of Delaware and has its principal place of business in the State of Michigan. Defendant, The Dow Chemical UCC 082295 Company, regularly does and solicits business in Massachusetts and derives substantial revenue from the sale and use of its products in Massachusetts. 3. Defendant, B.F. Goodrich Company, is a corporation which is incorporated in the State of New York and has its principal place of business in the State cf Ohio. Defendant, E.F. Goodrich Company, regularly does and solicits business in Massachusetts and derives substantial revenue from ihe sale and use of its products m Massa chusetts . 4. Defendant, Whittaker Development Co., is the successor cor poration of Great American Chemical Corporation, a corporation which was incorporated in the State of Delaware and had its principal place of business in the State of California. Defendant, Whittaker Development Co., is incorporated in Delaware and has its principal place of business in California, regularly does and solicits busi ness in Massachusetts and derives substantial revenue from the sale and use of its products in Massachusetts. 5. Defendant, Union Carbide Corp., is a corporation which is incorporated in the State of New York and has its principal place of business in the State of Connecticut. Defendant, Union Carbide Corp., regularly does and solicits business in Massachusetts and derives substantial revenue from the sale and use of its products in Massachusetts. 6. Defendant, American Cyanamid Corporation, is a corporation which is incorporated in the State of Maine and has its principal place of business in the State of New Jersey. Defendant, American Cyanaraid Corporation, regularly does and solicits business in Massachusetts and derives substantial revenue from the sale and use of its products in Massachusetts. 7. Defendant, Continential Oil Company ("CONOCO"), is a corpo ration which is incorporated in the State of Delaware and has its principal place of business in the State of Delaware. CONOCO regularly does and solicits business in Massachusetts and derives substantial revenue from the sa^e and use, of its products in Massa chusetts . JURISDICTION 8. This Court has jurisdiction of this action pursuant to 28 USC 1332 since this civil action is between citizens of different States and the matter in controversy exceeds the sum or value of Fifty Thousand Dollars (450,000.) exclusive of interest and costs. COUNT I (Wrongful Death - Negligence - M.G.L. c. 229, 2) 9. The plaintiff's decedent, John H. Warren, (hereinafter referred to as "Mr. Warren") was employed as a production worker by the Monsanto Company in Springfield, Massachusetts, from 1947 to 1987. During that time, the Monsanto Company engaged in the produc tion and manufacture of various plastics and other materials includ ing polyvinyl chloride and related products (hereinafter collective ly referred to as "PVC"). 10. As part of Mr. Warren's employment at the Monsanto Company, he was regularly exposed to, forced to come into contact with, and breathed and ingested fumes and vapors emanating from vinyl chloride and related compounds used by Monsanto in the manufacture of PVC. UCC 082297 -4- 11. Upon information and belief, at all times material hereto, defendant, The Dow Chemical Company, sold or otherwise supplied said vinyl chloride and related compounds to Monsanto, either directly or through third parties, for the manufacture of .PVC and other related applications. 12. Upon information and belief, at ail times material hereto, defendant, 2.1-'. Goodrich Company, sold or otherwise supplied said vinyl chloride and related compounds to Monsanto, either directly or through third parties, for the manufacture of PVC and other related applications. 13. Upon information and belief, at all times material hereto, defendant. Union Carbide Corp., sold or otherwise supplied said vinyl chloride and related compounds to Monsanto, either directly or through third parties, for the manufacture of PVC and other related applications. 14. Upon information and belief, at all times material hereto. Great .American Chemical Corp., predecessor corporation to defendant, Whittaker Development Co., sold or otherwise supplied said vinyl chloride and related compounds to Monsanto, either directly or through third parties, for the manufacture of PVC and other related applications. 15. Upon information and belief, at all times material hereto, defendant, American Cyanamid Corporation, sold or otherwise supplied said vinyl chloride and related compounds to Monsanto, either dir ectly or through third parties, for the manufacture of PVC and other related applications. UCC 082298 16. Upon information and belief, at all times material hereto, the defendant, CONOCO, sold or otherwise supplied said vinyl chloride and related compounds to Monsanto, either directly or through third parties, for -he manufacture of PVC and other related applications. 17. At all times material hereto, each of the defendants knew or should have known that the vinyl chloride products which they manufactured and/or supplied to Monsanto were inherently and unrea sonably dangerous and defective when ingested, breathed or absorbed. 18. At all times material hereto, all of the defendants either knew or should have known that Mr. Warren and other similarly situ ated chemical workers, during the usual course of their employment, and through the ordinary foreseeable use of said vinyl chloride products and materials, would be exposed to and would inhale, absorb and ingest fumes and vapors emanating from said products and mater ials on a regular basis. 10. At all times material hereto, all of the defendants owed a duty of due and reasonable care to Mr. Warren and other similarly situated persons in the processing, designing, testing, manufactur ing, distributing, selling, supplying and/or marketing of their vinyl chloride products. 20. Each of the defendants breached its duty of due and reason able care by the following conduct: (a) by negligently processing, testing, designing, manufacturing, distributing, marketing, supply ing and selling vinyl chloride products; (b) by negligently failing UCC 082299 -6- 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; (c) by negligently failing to properly test and investigate the dangers posed to chemical workers such as Mr. Warren by their vinyl chloride products; (d) by negligently failing tc reduce, minimize, eliminate or eradicate the health hazards posed by their vinyl chloride products. 11. As a direct and proximate result of the defendants' afore said negligence, Mr. Warren suffered injuries, suffered loss of earnings, suffered serious illness and ultimately died as a result of angiosarcoma of the liver on January 29, 1988. 22. As a direct and proximate result of defendants' aforesaid negligence, Mr. Warren's next-of-kin including his widow, Alice L. Warren, and his two surviving sons, Daniel W. Warren and John D. Warren, have sustained damages, .including but not limited tc loss of reasonably expected r.et income, services, protection, care, assist ance, society, companionship, comfort, guidance, counsel and advice, pain, suffering and mental anguish, funeral and burial expenses and other damages as provided in M.G.L. c. 229, 2, COUNT II (Wrongful Death Negligence - Conscious Pain and Suffering, M.G.L. c. 229, $ 6) 23. The plaintiff repeats and realleges the allegations con tained in paragraphs 1 through 22, and by reference incorporates them herein. UCC 082300 24. As a further direct and proximate result of the defendants' aforesaid negligence, Mr. Warren sustained conscious, physical and emotional pain and suffering until the time of his death on January 29, 1988. 25. The plaintiff is entitled to recover damages for Mr. Warren's conscious, physical and emotional pain and suffering pursu ant tc M.G.L. c. 229, 6. COUNT III (Wrongful Death - Breach of Warranty - M.G.L. c. 229, 2) 26. The plaintiff repeats and realleges the allegations con tained in paragraphs 1 through 25, and by reference incorporates them herein. 27. The defendants expressly and impliedly warranted to users of their vinyl chloride products, including Mr. Warren, that said produces were safe, merchantable and fit for their intended uses, including the manufacture of PVC and related materials. 28. The defendants breached their express and implied warran ties in that the vinyl chloride products supplied by the defendants were unsafe, not of merchantable quality, were unfit for their intended uses and were defective and unreasonably dangerous. 29. As a direct and proximate result of defendants' breach of warranties, Mr. Warren suffered injury, suffered loss of earnings, suffered serious illness and ultimately died as a result of angio sarcoma of the liver on January 29, 1988. 30. As a further direct and proximate result of defendants' aforesaid breach of warranties, Mr. Warren's next-of-kin including UCC 082301 6- - his widow, Alice L. Warren, and his two surviving sons, Daniel w. Warren and John D. Warren, have sustained damages, including but not limited to loss of reasonably expected net income, services, protec tion, care, assistance, society, companionship, comfort, guidance, counsel and advice, pain, suffering and mental anguish, funeral and burial expenses and other carnages as provided in M.G.L. c. 229, 2. COUNT IV 6) 31. The plaintiff repeats and realleges the allegations con tained in paragraphs 1 through 30, and by reference incorporates them herein. 32. As a further direct and proximate result of defendants' breach of warranties, Mr. Warren was caused to suffer conscious, physical and emotional pain and suffering up to the time of his death on January 29, 1988. 33. The plaintiff is entitled to recgver damages for Mr. Warren's conscious, physical and emotional pain and suffering pursu ant to M.G.L. c. 229, 6. COUNT V (Wrongful Death - Malicious, Willful, Wanton and Reckless Conduct - M.G.L. c. 229, 2) 34. The plaintiff repeats and realleges the allegations con tained in paragraphs 1 through 33, and by reference incorporates them herein. UCC 082302 9- - 35. The defendants, by their aforesaid conduct acted malicious ly, willfully, wantonly and recklessly. 36. As a direct and proximate resulr of the defendants' mali cious, willful, wanton and reckless conduct, Mr. Warren suffered injury, suffered loss of earnings, suffered serious illness and ultimately died as a result of angiosarcoma of the liver on January 29, 1988. 37. As a further direco and proximate result of defendants' malicious, willful, wanton and reckless conduct, Mr. Warren's nextof-kin including his widow, Alice L. Warren, and his two surviving sons, Daniel w. Warren and John D. Warren, have sustained damages, including but not limited to loss of reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel ana advice, pain, suffering and mental anguish, funeral and burial expenses and other damages as provided ir. M.G.L. c. 229, 5 2. COUNT VI (Wrongful Death - Malicious, Willful, Wanton and Reckless Conduct - M.G.L. c. 229, 6) 38. The plaintiff repeats and realleges the allegations con tained in paragraphs 1 through 37, and by reference incorporates them herein. 39. As a further direct and proximate result of defendants malicious, wanton, willful and reckless conduct, Mr. Warren sus tained conscious, emotional and physical pain and suffering until the time of his death on January 29, 1988. UCC 082303 -10- 40. The plaintiff is entitled to recover compensatory and pun itive damages for Mr. Warren's conscious, physical and emotional pain and suffering pursuant to M.G.L. c. 229, 6. PRAYER FOR RELIEF WHEREFORE, the plaintiff, Alice L. Warren, Administratrix of the Estate of John H. Warren, demands judgment against all of the defen dants, jointly and severally, which shall include the following items of relief: A. Damages in the full and just amount of Five Million Dollars (45,000,000.) representing the fair monetary value of the decedent, John H. Warren, to those persons entitled to receive such damages as provided in M.G.L. c. 229, 1, to wit, his next-of-kin, Alice L. Warren, Daniel W. Warren and John D. Warren: B. Reasonable funeral and burial expenses of the decedent in the amount of Twenty Five Thousand Dollars (425.000.); C. Punitive carnages pursuant to M.G.L. c. 229, 2, in the full and just amount of Fifty Million Dollars (450,000,000.); D. Damages for the conscious, physical and emotional pain and suffering of the decedent, John H. Warren, as provided in M.G.L. c. 229, 6, in the full and just amount of Five Million Dollars (45,000,000.); and E. Costs, interest, reasonable attorneys' fees and whatever other relief the Court deems just and proper. UCC 082304 -11- DEMAND FOR JURY TRIAL The plaintiff hereby demands a trial by jury on all counts. THE PLAINTIFF ALICE L. WARREN, Administratrix of the Estate of John H. Warren By________________________ James H. Tourtelotte, Esq., and 0955p 3V_____________________________________________ Keith A. Minoff, Esq., both of Robinson Donovan Madden & Barry, P.C. 1500 Main Street - Suite 1400 Springfield, Massachusetts C1115 (413) 732-2301 UCC 082305