A Documentary Companion to a Civil Action

by Grossman, Lewis A.; Vaughn, Robert G.; Harr, Jonathan

• ISBN13: 9781587784224
• ISBN10: 158778422X
• Edition: Revised
• Format: Paperback
• Copyright: 2002-12-01
• Publisher: Foundation Pr

Table of Contents

PART I THE SETTING OF THE LITIGATION
Personal Jurisdiction	3	(4)
The Statutory Inquiry	3	(1)
Massachusetts General Laws Chapter 233A §3	4	(1)
The Constitutional Inquiry	4	(3)
Comments and Questions	4	(3)
Notice	7	(8)
Massachusetts Rule of Civil Procedure 4	7	(3)
Comments and Questions	10	(1)
Summons Served on Beatrice	11	(2)
Summons Served on Grace	13	(2)
Subject Matter Jurisdiction	15	(24)
Introduction	15	(2)
Comments and Questions	15	(2)
Federal Question	17	(1)
Diversity of Citizenship	18	(5)
Comments and Questions	18	(1)
An American in Toronto: The Charles Anderson Episode, Part 1	19	(1)
Motion To Amend Complaint	19	(1)
Comment and Questions	20	(1)
Opposition To Plaintiffs' Motion To Amend Complaint	21	(1)
Comments and Questions	22	(1)
Removal Jurisdiction	23	(5)
Comments and Questions	23	(1)
Petition For Removal	24	(2)
Comments and Questions	26	(2)
Supplemental Jurisdiction	28	(11)
An American in Toronto: The Charles Anderson Episode, Part 2	28	(1)
Order On Motion To Amend Complaint	29	(1)
Comments and Questions	29	(1)
Memorandum In Support Of Motion For Reconsideration	30	(5)
Comment and Questions	35	(1)
Amended Order On Motion To Amend Complaint	35	(1)
Comments and Questions	36	(3)
Venue and Transfer	39	(12)
Massachusetts General Laws chapter 223, §1	39	(1)
28 U.S.C. §1391 (1982)	40	(1)
Note: Venue and Removal	40	(1)
Bangor Bound?	40	(1)
Motion For Change Of Venue	41	(3)
Memorandum In Support Of Defendant Grace's Motion For Change Of Venue	44	(2)
Plaintiffs' Opposition To Defenant W.R. Grace & Company's Motion For Change Of Venue	46	(1)
Comments and Questions	47	(1)
Problem: Venue Transfers and Choice of Law	48	(1)
Note: Pretrial Publicity	49	(2)
The Governing Law in a Diversity Case	51	(10)
Problem 1	51	(1)
Anderson v. W.R. Grace, 628 F. Supp. 1219 (D. Mass. 1986)	52	(3)
Note: Certification of Questions of Law	55	(1)
Problem 2	55	(2)
Problem 3	57	(4)
PART II THE PRETRIAL PROCESS
Pleadings	61	(94)
The Complaint	61	(22)
Second Amended Complaint for Personal Injury, Wrongful Death and Injunction	63	(17)
Comments and Questions	80	(3)
Responses to the Complaint	83	(18)
Motions	83	(1)
Answers	83	(1)
Answer Of W.R. Grace & Co. And Its Cryovac Division To Second Amended Complaint	84	(4)
Answer Of Defendant Beatrice Foods Co. And Its Division John J. Riley Company To Second Amended Complaint	88	(11)
Comments and Questions	99	(2)
Amending the Pleadings	101	(12)
Supplement To Order On Motion To Amend Complaint	102	(2)
Comments and Questions	104	(1)
Motion To Amend Complaint	105	(1)
Defendants' Memorandum In Opposition To Plaintiffs' Motion To Amend Complaint	106	(5)
Comments and Questions	111	(1)
Amendments to Conform with Evidence	112	(1)
Relation Back	112	(1)
Rule 11	113	(42)
A Motion Slightly Ahead of its Time?	114	(1)
Motion By Defendant W.R. Grace & Co. d/b/a/ Cryovac Division To Strike Complaint And Amended Complaint And Dismiss The Action Under Rule 11	115	(3)
Plaintiffs' First Memorandum In Support Of Plaintiffs' First Motion To Compel Answers To Interrogatories, Motion For A Protective Order And Request For An Expedited Hearing And In Opposition To Motion By Defendant W.R. Grace & Co. For Protective Order And To Strike The Complaint And Amended Complaint and Dismiss The Action	118	(4)
Plaintiffs' Memorandum In Support Of Motion For Reconsideration Regarding Form Of Demonstration Of Compliance With Rule 11 Or, In The Alternative, To Limit The Scope And Nature Of The Inquiry Regarding Compliance With Rule 11	122	(10)
Defendant's Memorandum Of Law In Opposition to Motion For Reconsideration	132	(6)
Supplemental Memorandum Of W.R. Grace & Co.	138	(4)
Anderson v. Cryovac, Inc., 96 F.R.D. 431 (D. Mass. 1983)	142	(1)
Comments and Questions	143	(3)
Note: The Posttrial Rule 11 Sanctions	146	(1)
A Skin-Deep Portrait?	147	(1)
Article from the Woburn Daily Times Chronicle	147	(4)
Excerpt from the Almanac of the Federal Judiciary	151	(1)
Note: Attorneys, Ethics and the Media	152	(3)
Joinder of Claims and Parties	155	(34)
Permissive and Compulsory Joinder of Claims	155	(2)
Permissive and Compulsory Joinder of Parties	157	(1)
Impleader	157	(23)
Unifirst: Taken to the Cleaners?	157	(2)
Motion To Add Third-Party Defendant	159	(1)
Third-Party Complaint Of W.R. Grace & Co.	160	(2)
Comments and Questions	162	(2)
Memorandum And Order	164	(3)
Comments and Questions	167	(2)
Answer Of Third-Party Defendant UniFirst Corporation	169	(5)
Fourth-Party Complaint of UniFirst Corporation	174	(2)
Comments and Questions	176	(3)
Stipulation Of Voluntary Dismissal Of Action By Third-Party Plaintiff W.R. Grace & Co. Against Third-Party Defendant UniFirst Corporation	179	(1)
Intervention	180	(5)
Motion Of CBS Inc. To Intervene Pursuant To Rule 24 Of The Federal Rules Of Civil Procedure	181	(1)
Complaint of Intervenor CBS Inc.	182	(2)
Comments and Questions	184	(1)
Class Actions	185	(4)
General Issues	186	(1)
Rule 23(a) Requirements	186	(1)
Rule 23(b) Requirements	187	(2)
Discovery I: Introduction and Scope	189	(56)
General Issues	189	(1)
Informal Discovery	190	(6)
Motion Of Defendant Beatrice Foods Co. For Order Prohibiting Plaintiffs' Representatives From Making False Statements To Potential Witnesses And For Other Appropriate Relief	192	(2)
Comments and Questions	194	(2)
Scope of Discovery: Relevance	196	(9)
Opposition Of Defendant W.R. Grace & Co. To Motion To Compel Deposition Answers	196	(2)
Comments and Questions	198	(1)
Motion Of Defendant Beatrice Foods Co. And Of The John J. Riley Co. For Protective Order	199	(3)
Plaintiffs' Opposition To Defendant Beatrice Foods' Motion For A Protective Order	202	(2)
Comments and Questions	204	(1)
Note: The Tannery Case Versus the Fifteen Acres Case	204	(1)
Scope of Discovery: Work Product Protection	205	(4)
Scope of Discovery: Attorney-Client Privilege	209	(7)
Is There a Lawyer in the House?	210	(1)
Deposition Of Ulf Nordin (December 4, 1985)	210	(3)
Grace's Opposition To Plaintiffs' Motion To Compel Nordin, Cazmay, And Morrone To Answer Questions At Their Depositions	213	(2)
Comments and Questions	215	(1)
Order of December 19, 1985	215	(1)
Comments and Questions	216	(1)
Scope of Discovery: Experts	216	(15)
Defendant W.R. Grace & Co.'s Preliminary List Of Expert Witnesses	218	(5)
Comments and Questions	223	(1)
The Doctor is Out: Dr. Beck, Part 1	224	(1)
Defendants' Motion To Quash Plaintiffs' Subpoena To Take The Deposition Of An Expert Not To Be Called As A Witness	225	(1)
Comments and Questions	226	(2)
Order of December 16, 1985	228	(2)
Comments and Questions	230	(1)
Protective Orders	231	(11)
Evading Grace	231	(2)
Motion To Allow Plaintiffs To Take The Deposition Of J. Peter Grace And For Limited Production Of Documents	233	(2)
Opposition of W.R. Grace & Co. To Motion To Allow Plaintiffs To Take The Deposition Of J. Peter Grace	235	(6)
Comments and Questions	241	(1)
Mandatory Disclosures	242	(3)
Discovery II: Techniques	245	(146)
Interrogatories	245	(37)
Interrogatories Propounded By The Plaintiffs, Anne Anderson, Et Al., To Be Answered By The Defendant W.R. Grace & Co.	246	(1)
Answers Of W.R. Grace & Co. To Plaintiffs' Interrogatories	247	(28)
Objections of W.R. Grace & Co. To Plaintiffs' Interrogatories	275	(1)
Comments and Questions	276	(3)
Letter of April 1, 1983, from William Cheeseman to Jan Schlichtmann	279	(3)
Depositions	282	(18)
General Issues	282	(1)
Depositions: Notices and Subpoenas	282	(1)
Notice of Taking Deposition	283	(1)
Comments and Questions	284	(2)
Subpoena To The John J. Riley Company	286	(1)
Notice of Taking Deposition-Person Most Knowledgeable	287	(1)
Comments and Questions	288	(1)
Your Arm's Too Short	288	(1)
Deposition Disputes	289	(1)
Deposition of Paul Shalline (March 5, 1985)	290	(2)
Comments and Questions	292	(2)
Motion Of Defendant Beatrice Foods Co. For Order Precluding Interference With And Disruption Of Depositions And Other Improper Conduct	294	(3)
Comments and Questions	297	(1)
Facher Talks Shop	297	(1)
Deposition Practice and Tactics	298	(2)
Production of Documents and Things	300	(12)
Document Requests	300	(1)
Request of Defendant Beatrice Foods Co. To The Plaintiffs For The Production of Documents	301	(5)
Comments and Questions	306	(1)
Failure to Produce Requested Documents	306	(1)
Plaintiffs' Motion To Compel Production Of Documents By W.R. Grace & Co.	307	(1)
Comments and Questions	308	(1)
Document Subpeonas	309	(1)
Subpoena To L.R. Page, Queensland	310	(1)
Comments and Questions	311	(1)
Note: ``Possessing, Custody, and Control'' of the Tannery Documents	311	(1)
Inspection of Land	312	(23)
Plaintiffs' Request For Entry, Inspection, Measuring, Surveying, Photographing, Testing Or Sampling The Property Of The Defendant, W.R. Grace Co.	313	(2)
Letter of May 29, 1985, from William Cheeseman to Jan Schlichtmann	315	(2)
Comments and Questions	317	(1)
Tannery Row: The Dispute Over the Inspection of the Beatrice Property	317	(1)
Note: Corporate Shell Game?	317	(2)
Letter of January 7, 1985, from the Weston Geophysical Corporation to Jan Schlichtmann	319	(1)
Request For Inspection Of Real Property	320	(2)
Response Of Defendant Beatrice Foods Co. To Plaintiffs' Request For Inspection Of Real Property	322	(1)
Comments and Questions	323	(1)
Letter of June 21, 1985, from the Weston Geophysical Corporation to Economic Planning Group	324	(2)
Comments and Questions	326	(1)
Order of August 29, 1985	327	(1)
Comments and Questions	328	(1)
Motion For Order Compelling Beatrice To Allow Plaintiffs To Complete Inspection And Testing Of Beatrice's Property	329	(3)
Comments and Questions	332	(1)
Hearing of September 13, 1985, Hearing on Clarification	333	(2)
Comments and Questions	335	(1)
Physical and Mental Examinations	335	(43)
The Scope of the Examination	336	(1)
'Tis Only A Scratch	336	(1)
Letter of January 2, 1986, from Annemarie Hassett to Jan Schlichtmann	337	(1)
Letter of January 2, 1986, from Jan Schlichtmann to Annemarie Hassett	338	(1)
Letter of January 3, 1986, from Annemarie Hassett to Jan Schlichtmann	339	(3)
Letter of January 7, 1986, from Annemarie Hassett to Jan Schlichtmann	342	(1)
Comments and Questions	343	(1)
Motion Of Defendants For An Order To Compel Physical Examination Of The Plaintiffs	344	(1)
Comments and Questions	345	(1)
Plaintiffs' Motion For Sanctions Against Defendants For Conducting Unauthorized and Potentially Harmful Testing On Plaintiffs	346	(1)
Comments and Questions	347	(1)
Defendants' Opposition To Plaintiffs' Motion For Sanctions	348	(2)
Comments and Questions	350	(1)
Hearing of January 9, 1986	351	(7)
Comments and Questions	358	(1)
Defendants' Opposition To Plaintiffs' Motion For A Protective Order Regarding Kathryn Gamache, And Motion To Compel Submission To A Sinus X-Ray	359	(1)
Comments and Questions	360	(1)
Discovery of the Examiner's Records	361	(1)
Doctor's Notes: Dr. Beck, Part 2	361	(1)
Motion To Compel Reports And Documents Of Dr. Beck And His Availability For Deposition	362	(1)
Comments and Questions	363	(2)
Hearing of January 14, 1986	365	(2)
Comments and Questions	367	(1)
More Doctors' Notes	368	(1)
Motion Of Beatrice Foods Co. For Order Compelling Discovery	368	(2)
Comments and Questions	370	(1)
Hearing of September 13, 1985	371	(4)
Comments and Questions	375	(2)
Note: The Doctor-Patient Privilege	377	(1)
Requests for Admission	378	(13)
Plaintiffs' Request For Admissions To The Defendant John J. Riley Company, Division Of Beatrice Foods Company: Set I	379	(6)
Comments and Questions	385	(6)
Discovery III: Secrecy in Litigation	391	(24)
Confidentiality Stipulations	391	(2)
Protective Orders to Preserve Secrecy	393	(22)
Global Warfare	393	(1)
Motion For Protective Order	394	(1)
Memorandum In Support Of Motion For Protective Order	395	(6)
Protective Order, September 4, 1985	401	(1)
Comments and Questions	402	(1)
Interim Protective Order, October 8, 1985	403	(1)
Order, October 16, 1985	404	(1)
Comments and Questions	405	(1)
Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986)	406	(6)
Comments and Questions	412	(3)
Discovery IV: Abuse and Sanctions	415	(82)
Yankee Hanky-Panky	415	(2)
Memorandum And Order On Plaintiffs' Motion For A New Trial	417	(9)
Comments and Questions	426	(1)
Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988)	426	(13)
Comments and Questions	439	(1)
Statement Of Jerome Facher In Response To Court Order Of December 22, 1988	440	(7)
Written Statement Of Attorney Mary K. Ryan Obtained Pursuant To Court Order Of December 22, 1988	447	(3)
Comments and Questions	450	(1)
Anderson v. Beatrice Foods Co., 127 F.R.D. 1 (D. Mass. 1989)	451	(5)
Comments and Questions	456	(2)
Memorandum In Support Of Motion Of Mary K. Ryan For Reconsideration Of Finding Of Deliberate Misconduct And In Opposition To Recommendation Of Sanctions	458	(5)
Affidavit Of Attorney Mary K. Ryan	463	(6)
Comments and Questions	469	(1)
Note: Defenses Based On Customary Practice	469	(2)
Memorandum On Motions Of John J. Riley Et Al., And Attorney Mary Ryan For Reconsideration And Motion Of Attorney Mary Ryan To Participate In Hearings On Sanctions	471	(2)
Note: Plaintiffs' Use of the Ryan and Fishman Affidavits	473	(2)
Comments and Questions	475	(2)
Anderson v. Beatrice Foods Co., 129 F.R.D. 394 (D. Mass. 1989)	477	(10)
Comments and Questions	487	(1)
Note: The Dispute Over the Court-Appointed Expert	488	(1)
Comments and Questions	489	(1)
Anderson v. Beatrice Foods Co., 900 F.2d 388 (1st Cir. 1990)	490	(6)
Comments and Questions	496	(1)
Scheduling and Pretrial Conferences	497	(46)
Scheduling Order, September 5, 1984	498	(1)
Comments and Questions	498	(1)
Note: Scheduling Disputes	499	(2)
Affidavit Of Jerome P. Facher In Support Of Continuance Of The Trial Date On The Ground Of Fairness: Exhibit A	501	(6)
Plaintiffs' Opposition To Defendants' Motion For A Continuance: Exhibit A, Expert Deposition Breakdown	507	(2)
Comments and Questions	509	(3)
Pretrial Memorandum	512	(15)
Comments and Questions	527	(1)
The ``Polyfurcation'' Of The Trial	528	(1)
Defendant W.R. Grace & Co.'s Supplemental Memorandum In Support Of Motion For Separate Trial On Liability And Damages	529	(2)
Beatrice's Memorandum Concerning Trial Of Dispositive Issues	531	(4)
Plaintiffs' Trial Plan: A Modified Test Case	535	(2)
Comments and Questions	537	(3)
Note: The Civil Justice Reform Act of 1990	540	(3)
Settlement and Voluntary Dismissal	543	(14)
Settlement	543	(12)
General Issues	543	(1)
Pretrial Settlement Negotiations	544	(2)
Settlement Negotiations After the First Phase of the Trial	546	(2)
Jint Motion For Order Approving Settlement	548	(2)
Proposed Order Approving Settlement	550	(1)
Order Of Dismissal	551	(1)
Comments and Questions	551	(3)
Stipulation of Dismissal	554	(1)
Voluntary Dismissal	555	(2)
Plaintiffs' Motion For Voluntary Dismissal Of Eric Aufiero's Claims	555	(1)
Comments and Questions	556	(1)
Summary Judgment	557	(28)
Memorandum of W.R. Grace & Co. In Support Of Its Motion For Summary Judgment	558	(9)
Memorandum In Support Of Plaintiffs' Opposition To Defendant, W.R. Grace And Company's Motion For Summary Judgment	567	(10)
Comments and Questions	577	(3)
Defendants' Joint Motion For Partial Summary Judgment	580	(1)
Comments and Questions	581	(4)
PART III TRIAL AND POSTRIAL MOTIONS
Right to Trial by Jury and Jury Selection	585	(26)
Transcript, Third Day Pre-Trial Conference, February 11, 1986	585	(13)
The Right to Trial by Jury	598	(2)
The Size of the Jury and Jury Voting	600	(1)
The Jury Pool	601	(2)
The Voir Dire and Challenging Prospective Jurors	603	(8)
Voir Dire Questions	603	(3)
Comments and Questions	606	(5)
Motion for Judgment as a Matter of Law	611	(14)
Memorandum And Order On Motions For Directed Verdicts	612	(3)
Comments and Questions	615	(1)
Supplementary Memorandum On Plaintiffs' Motions For Reconsideration Of Rulings On Motions For Directed Verdicts	616	(1)
Comments and Questions	617	(1)
Note: Judge Skinner and Strict Liability	618	(3)
Information Pertaining to Chemical Dumping on a 15-acre Site off Salem Street in Woburn, Mass	621	(4)
Instructions and Verdicts	625	(26)
Intruction	625	(3)
Instruction Regarding Circumstantial Proof	625	(2)
Comments and Questions	627	(1)
Forms of Verdicts	628	(23)
Say What? The Special Verdict, Part 1	629	(1)
Special Interrogatories To The Jury As To Beatrice Foods	630	(2)
Comments and Questions	632	(1)
Note: Schlichtmann's Attempt to Save the Case Against Beatrice	632	(2)
Memorandum And Order On Defendant Beatrice Foods Co.'s Motion For Immediate Entry Of Final Judgment Under Rule 54(b)	634	(4)
Comments and Questions	638	(1)
Anderson v Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988)	639	(10)
Comments and Questions	649	(2)
Renewed Motion for Judgment as a Matter of Law After Trial and Motion for a New Trial	651	(40)
Say What? The Special Verdict, Part 2	651	(1)
Special Interrogatories To The Jury As To W.R. Grace & Co.	652	(2)
Renewed Motion for Judgment as a Matter of Law After Trial	654	(22)
W.R. Grace & Co.'s Memorandum In Support Of Motions Re Phase I	655	(11)
Memorandum In Support Of Plaintiffs' Opposition To Grace's Motion For A New Trial, Entry Of Judgment, And Dismissal Of Plaintiffs' Claims	666	(9)
Comments and Questions	675	(1)
Motion for a New Trial	676	(15)
W.R. Grace & Co.'s Memorandum In Support Of Motions Re Phase I	677	(3)
Memorandum In Support Of Plaintiffs' Opposition To Grace's Motion For A New Trial, Entry Of Judgment, And Dismissal of Plaintiffs' Claims	680	(4)
Comments and Questions	684	(3)
Memorandum And Order On The Motion Of W.R. Grace & Co. For A New Trial	687	(2)
Comments and Questions	689	(2)
Appeals and Rule 60 Motions	691	(12)
Motion For Entry of Judgment	691	(3)
Motion For Entry Of Final Judgment And Approval Of Form Of Final Judgment	692	(1)
Comments and Questions	693	(1)
Appeal	694	(5)
Joint Notice Of Appeal As To Defendant Beatrice Foods, Inc.	695	(1)
Comments and Questions	696	(2)
Order Of The United States Court Of Appeals For The First Circuit	698	(1)
Comments and Questions	699	(1)
Rule 60 Motions	699	(4)
Claim and Issue Preclusion	703	(18)
Preclusion in Subsequent Civil Actions	703	(14)
Motion For Preliminary Injunction And Supporting Authorities	704	(5)
Plaintiffs' Memorandum In Support Of Their Opposition To Defendant's Motion For Preliminary Injunction	709	(7)
Comments and Questions	716	(1)
Preclusion and Administrative Proceedings	717	(4)
Comments and Questions	718	(3)
Conclusion	721	(8)
Appendix A: ABA Model Rules of Professional Conduct	729	(16)
Appendix B: Ecology and Environmental Report	745	(18)
Appendix C: Yankee Report	763	(10)
Appendix D: U.D. Geological Survey Report	773	(10)
Appendix E: Woburn Childhood Leukemia Follow-up Study	783