Taylor v. American Chemistry Council

United States Court of Appeals
For the First Circuit

No. 07-2422

JUNE A. TAYLOR, ET AL.,

Plaintiffs, Appellants,

v.

THE AMERICAN CHEMISTRY COUNCIL, ET AL.,

Defendants, Appellees,

AIRCO, INC., ET AL,
Defendants.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Lipez, and Howard,
Circuit Judges.

Ronald Simon, with whom Simon & Associates, Herschel L.
Hobson, The Law Office of Herschel L. Hobson, Peter B. Sessa, and
Sessa, Glick & Quiroga LLP were on brief, for appellants.
Timothy J. Coughlin, Heidi B. Goldstein, Andrea B. Daloia,
Thompson Hine LLP, Richard L. Neumeier, Mark S. Granger, and
Morrison Mahoney LLP on brief for appellees American Chemistry
Council and Goodrich Corporation.
Samuel Goldblatt, with whom Joseph J. Leghorn, J. Christopher
Allen, Jr., Nixon Peabody LLP, William E. Padgett, Michael Moon,
Jr., and Barnes & Thornburg, LLP were on brief, for appellee The
Dow Chemical Company.
Michael K. Callan, Doherty, Wallace, Pillsbury & Murphy, P.C.,
William Gorenc, Jr., and Marco, Marco & Bailey on brief for
appellee GenCorp, Inc.
John B. Manning, Brian D. Gross, Cooley Manion Jones LLP, Gail
C. Ford, and Vorys, Sater, Seymour and Pease LLP on brief for
appellee Goodyear Tire & Rubber Company.
W. Ray Persons, with whom Carmen R. Toledo, King & Spalding,
Lawrence G. Cetrulo, Christopher M. Tauro, and Cetrulo & Capone LLP
were on brief, for appellee Union Carbide Corp.

August 3, 2009
 LIPEZ, Circuit Judge. The surviving wife and sons of

Claude Taylor ("Taylor") brought suit against various companies in

the polyvinyl chloride ("PVC") industry and an industry trade

association, alleging that their failure to warn, fraud, and civil

conspiracy caused Taylor's wrongful death. After discovery,

defendants moved for summary judgment on all counts. The district

court granted summary judgment, holding that Taylor's employer,

Monsanto Company ("Monsanto"), was a sophisticated user of

defendants' products and the defendants owed Taylor no duty to warn

about the dangers of their products. The district court dismissed

the fraud and conspiracy claims as well, finding no evidence in the

record that the defendants were responsible for the warnings in

question, or that they had any knowledge of or control over

Monsanto's activities at the plant where Taylor worked. Plaintiffs

appealed.

After examining the record, we agree with the district

court's conclusion that Monsanto was a sophisticated user of the

defendants' products, and that, on this record, a reasonable jury

could not find for the plaintiffs on the fraud and conspiracy

claims. We therefore affirm.

I.

Because this is an appeal from a grant of summary

judgment, we recite the facts in the light most favorable to the

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non-movants, here the appellants. Levesque v. Doocy, 560 F.3d 82,

84 (1st Cir. 2009). In light of the district court's exhaustive

account below, see Taylor v. Airco, Inc., 503 F. Supp. 2d 432, 436-

42 (D. Mass. 2007), we confine ourselves to the facts necessary for

our decision.

Taylor worked for Monsanto from 1953 to 1989, at the

Indian Orchard plant in Springfield, Massachusetts. For much of

this period, Taylor was employed in the plant's PVC polymerization

department. PVC was manufactured at Indian Orchard by combining

"vinyl chloride monomer" ("VC"), water, a suspending agent or

emulsifier, and a catalyst in a large tank, or "kettle." At

various stages of the manufacturing process, small amounts of VC

were released into the ambient air of the workspace, thereby

exposing Taylor to the chemical. In August 1975, Monsanto closed

down its PVC operations at Indian Orchard, and Taylor took a new

position in which he was not exposed to VC.

Monsanto acquired the VC it used at Indian Orchard from

a variety of sources. In 1952, Monsanto began manufacturing VC at

its plant in Texas City, Texas. Monsanto shipped VC manufactured

in Texas City by pressurized railcar to Indian Orchard, where it

was stored in outdoor tanks until it was processed. Between 1952

and 1969, the Texas City plant supplied most of the VC used at

Indian Orchard. However, Monsanto also obtained some amounts of VC

from other suppliers as backup. Included among these suppliers was

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appellee The Dow Chemical Company ("Dow"). In 1969, Monsanto's

Texas City plant shut down, and Dow became the principal supplier

of VC to Indian Orchard. Other VC suppliers included appellees

Goodrich Corporation ("Goodrich") and Union Carbide Corporation

("Union Carbide").

Many of the dangers associated with VC have long been

understood. By the 1960's, the plastics industry knew that VC was

highly flammable and that it had anaesthetic effects when inhaled

in high concentrations. Early safety warnings issued by the

industry reflect this knowledge. The warning principally at issue

in this case, "Chemical Safety Data Sheet SD-56" ("SD-56"), was

published by an industry trade association, appellee American

Chemistry Council ("ACC"), and provided to PVC manufacturers.1 The

first version of SD-56, published in 1954, was sixteen pages in

length, and contained information about the scientific properties

of VC, as well as proper methods for shipping, unloading, storing,

and handling VC. The document also identified fire and explosion

as the principal health hazards associated with VC, and stated that

other than these hazards, VC "present[ed] no very serious risk in

general handling." SD-56 also recommended that workplace

"concentration[s] of vinyl chloride . . . be kept below the upper

safe limit of 500 ppm [parts per million] at all times." The same

1
At the time, ACC was known as the Manufacturing Chemists'
Association, or "MCA." It subsequently changed its name to
Chemical Manufacturers Association, and then ACC.

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limit had been adopted in 1946 by the American Conference of

Governmental Industrial Hygienists ("ACGIH") as the "Threshold

Limit Value" ("TLV").2 Monsanto incorporated a 500 ppm exposure

limit (as well as other language from SD-56) into the 1965 Indian

Orchard "Standard Procedure" manual for PVC polymerization.

In the late 1950's and 1960's, companies in the PVC

industry began to learn that exposure to VC was more dangerous than

previously believed. We describe these developments in greater

detail below, but, broadly speaking, three discoveries were made.

First, in 1959, scientists at Dow discovered that chronic exposure

to VC in concentrations as low as 100 ppm caused liver injury in

laboratory animals. Second, in 1964 appellee Goodrich discovered

that a significant number of its PVC kettle cleaners had developed

a degenerative hand condition, now known as "acroosteolysis."

Third, in late 1969 or early 1970, Italian doctor P. L. Viola

discovered cancerous tumors in rats exposed to 30,000 ppm of VC for

four hours a day, five days a week, for twelve months.

Despite the discoveries during this period, ACC did not

revise SD-56 until 1972. The revised 1972 version of SD-56 warned

that "[c]hronic overexposure [to VC] may produce liver injury," and

noted the discovery of acroosteolysis among PVC workers. The

revised version also stated, "[r]ecent research studies reported

2
The 1946 ACGIH TLV was 500 ppm as an eight-hour time-
weighted average.

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from Italy indicate that repeated, long-term high level exposures

of rats to vinyl chloride monomer vapor can cause the development

of malignant tumors. However, many years of industrial experience

. . . have not demonstrated any carcinogenicity to humans." The

1972 SD-56 maintained a recommended exposure limit of 500 ppm,

which it characterized as "well below a level producing any signs

or symptoms of toxicity."

In contrast, in 1972 ACGIH revised the TLV from 500 ppm

to 200 ppm.3 In February 1973, Dow mailed its customers a copy of

the 1972 SD-56 with a sticker affixed to the front. The sticker

noted ACGIH's reduction of the TLV to 200 ppm, and stated that Dow

maintained an average exposure limit in its own facilities of 50

ppm. In an attached cover letter, Dow recommended that its

customers adopt the 50 ppm limit and offered to assist them in

reaching it.

On January 23, 1974, appellee Goodrich issued a press

release disclosing that three of its PVC workers had died of

angiosarcoma, a rare form of liver cancer. The press release

stated that Goodrich was investigating whether the deaths were

"related to occupational causes." Monsanto immediately informed

employees at the Indian Orchard plant. Prior to this time,

3
ACGIH had previously revised the 1946 TLV. Specifically,
in May 1963, ACGIH revised the 500 ppm limit from an eight-hour
time-weighted average to a ceiling value.

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supervisors at Indian Orchard did not know that VC presented a

cancer risk to humans.4 On April 5, 1974, the United States

Occupational Safety and Health Administration ("OSHA") established

an emergency temporary VC exposure limit of 50 ppm as a ceiling

value. On October 4, 1974, OSHA established a Permissible Exposure

Limit ("PEL") of 1 ppm as an eight-hour time-weighted average, and

5 ppm as a ceiling averaged over any period exceeding 15 minutes.

On March 20, 2000, Claude Taylor was diagnosed with

intrahepatic cholangiocarcinoma, a form of liver cancer. He died

seven months later, on October 30, 2000.

II.

On January 31, 2002, Taylor's surviving wife and sons

brought suit against Monsanto, ACC, Dow, Goodrich, Union Carbide,

and other VC suppliers and PVC manufacturers, alleging their

4
David Gendron, a supervisor at Indian Orchard, stated in
his affidavit that:

I did not learn until early 1974 that VC[] was suspected
of being carcinogenic in humans or that exposure to the
levels of VC[] vapor sometimes present in the PVC
buildings [at Indian Orchard] created any serious health
risk. . . . In late January or early February 1974,
managers at Indian Orchard, me included, learned that
several cases of an unusual kind of liver cancer had
recently been identified in workers at B.F. Goodrich's
PVC polymerization plant in Kentucky.

Bruce Eley, an industrial hygienist at Monsanto, stated in his
affidavit: "These announcements [by Goodrich] in January of 1974
were the first indications to Monsanto that VC[] was a potential
cause of cancer in humans."

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liability for failure to warn, fraud, and civil conspiracy.

Subsequently, on February 3, 2005, plaintiffs filed a Second

Amended Complaint ("the Complaint") against eighteen defendants.5

The Complaint contains ten counts. Counts I-IV and Count X allege

failure to warn under various theories against the

"Manufacturer/Supplier Defendants," Dow, Goodrich, and Union

Carbide. Count V alleges fraud and fraudulent concealment against

the Manufacturer/Supplier Defendants. Counts VI-VIII allege

failure to warn against Monsanto. Finally, Count IX alleges civil

conspiracy against the "Conspiring Defendants," which include ACC,

Dow, GenCorp Inc. ("GenCorp"), Goodrich, The Goodyear Tire and

Rubber Company ("Goodyear"), Union Carbide, and other named

parties.

After various dismissals by the district court, ten

defendants remained in the case: ACC; Borden, Inc.; Conoco, Inc.;

Dow; GenCorp; Goodrich; Goodyear; Honeywell International, Inc.;

Olin Corporation; and Union Carbide. The defendants moved for

summary judgment on all remaining counts, arguing, inter alia, that

Monsanto was a sophisticated user of their products; that the

plaintiffs could not establish that defendants' failure to warn

5
The Second Amended Complaint named the following entities
as defendants: ACC; Borden, Inc.; Conoco, Inc.; Dow; GenCorp;
Goodyear Tire and Rubber Company; Goodrich; Honeywell
International, Inc.; Pharmacia Corporation; Pantasote, Inc.; PPG
Industries, Inc.; Rhone-Poulenc, Inc.; Shell Oil Company; Tenneco
Automotive, Inc.; Union Carbide; Uniroyal, Inc.; Whittaker
Corporation; and Zeneca, Inc.

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caused Taylor's injury; that Taylor had not relied on their

warnings as a matter of law; and that they had no control over, or

knowledge of, the conditions in Monsanto's Indian Orchard plant.

Plaintiffs opposed the motions.

The district court granted summary judgment for the

defendants. After laying out the evidence at length, the court

held that there could be no liability for failure to warn because

Monsanto was knowledgeable of the risks of VC; in light of

Monsanto's size and expertise, defendants reasonably relied on it

to provide adequate warnings to Taylor. The court rejected the

fraud claim because the record revealed that Taylor had not relied

on SD-56, and the record contained no evidence that the

Manufacturer/Supplier Defendants were responsible for the

particular representations at issue. Finally, the court held that

the conspiracy claim failed as a matter of law for lack of an

underlying tort, and because the record contained no evidence that

the Conspiring Defendants had any control over the conditions at

Indian Orchard or knowledge of the information Monsanto provided to

its workers.

Plaintiffs timely appealed. They argue that: (1) the

district court erred in its determination that the defendants

reasonably relied on Monsanto to provide Taylor with warnings;

(2) Taylor indirectly relied on SD-56, which the

Manufacturer/Supplier Defendants collectively authored as members

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of the ACC; and (3) the record contains evidence that the

Conspiring Defendants substantially assisted Monsanto in providing

it with SD-56, which they knew was widely relied upon in the

industry and which Monsanto in fact incorporated into its own

safety measures. Appellees dispute these contentions and advance

several arguments as alternative grounds for affirming the order of

the district court.

III.

We review de novo the district court's grant of summary

judgment. Chadwick v. WellPoint, Inc., 561 F.3d 38, 43 (1st Cir.

2009). Summary judgment is granted where "the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(c). A genuine issue of fact exists where "'the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.'" Chadwick, 561 F.3d at 43 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). While we resolve

all reasonable inferences in favor of the non-moving party, we

"must ignore conclusory allegations, improbable inferences, and

unsupported speculation." Am. Steel Erectors, Inc. v. Local Union

No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing

Iron Workers, 536 F.3d 68, 75 (1st Cir. 2008) (internal quotation

marks and citation omitted).

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A. Failure to Warn

1. Legal principles

Under Massachusetts law, a supplier has a duty to warn

foreseeable users of dangers in the use of its product of which the

supplier knows or should have known. Bavuso v. Caterpillar Indus.,

Inc., 563 N.E.2d 198, 201 (Mass. 1990). However, according to the

"sophisticated user" defense, there is no duty to warn an "end

user" of a product's latent characteristics or dangers when the

user knows or reasonably should know of those dangers.6 Carrel v.

Nat'l Cord & Braid Corp., 852 N.E.2d 100, 109 (Mass. 2006). The

sophisticated user defense is a corollary of the "open and obvious"

doctrine, id., under which there is no duty to warn where a danger

presented by a product is obvious, Bavuso, 563 N.E.2d at 201.

These doctrines apply where the user appreciates the danger to the

same extent as a warning would provide. Knowlton v. Deseret Med.,

Inc., 930 F.2d 116, 120 (1st Cir. 1991) (applying Mass. law).

Warning those who already appreciate a danger is superfluous and is

6
In the context of the sophisticated user defense, the
"end user" is the person whose sophistication is relevant to
determining the defense. Where a case involves three parties (such
as a supplier, an employer who purchases the product from the
supplier, and an employee who foreseeably comes into contact with
the product and is injured), the "end user" may be either the
intermediate party or the plaintiff. See Carrel, 852 N.E.2d at
109-110 (examining knowledge of intermediary); Barbosa v. Hopper
Feeds, Inc., 537 N.E.2d 99, 102 (Mass. 1989) (examining knowledge
of plaintiff).

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unlikely to have a deterrent effect. Carrel, 852 N.E.2d at 112;

Hoffman v. Houghton Chem. Corp., 751 N.E.2d 848, 855 (Mass. 2001).

The Massachusetts Supreme Judicial Court ("SJC") has

distinguished the sophisticated user defense from a similar defense

known as the "bulk supplier" defense. Hoffman, 751 N.E.2d at 854

(describing them as "separate, conceptually discrete affirmative

defenses"); see also Donahue v. Phillips Petroleum Co., 866 F.2d

1008, 1012 (8th Cir. 1989) (applying Mo. law) (similar). The bulk

supplier defense says that a supplier may, in some circumstances,

discharge its duty to warn foreseeable users of the dangers in the

use of its products by reasonably relying on an intermediary.

Hoffman, 751 N.E.2d at 854. As the SJC observed, there are several

key differences between the bulk supplier and sophisticated user

defenses. The bulk supplier defense allows a supplier defendant to

satisfy its duty to warn, while the sophisticated user defense

relieves the supplier from such a duty. Id. at 854-55; see also

Gray v. Badger Mining Corp., 676 N.W.2d 268, 276, 280 (Minn. 2004).

The bulk supplier defense presupposes the existence of an

intermediary between the supplier and the foreseeable user; the

sophisticated user defense "requires no intermediating

relationship," although it permits one. Hoffman, 751 N.E.2d at

854; see Carrel, 852 N.E.2d at 109-10 (upholding sophisticated user

defense instruction in case with two intermediate parties).

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 These differences reflect the distinct rationales of the

bulk supplier and sophisticated user defenses. As explained above,

the latter is premised on the idea that certain dangers are

"obvious" to a sophisticated user, making a warning superfluous.

See Carrel, 852 N.E.2d at 109, 112. In contrast, the bulk supplier

defense is premised on the special difficulties that bulk suppliers

face in directly warning foreseeable end users of the dangers of

their products. Hoffman, 751 N.E.2d at 856-57. For example, bulk

supplies are often transported in "tank trucks, box cars, or large

industrial drums," stored in bulk, and then "repackage[d] or

reformulate[d]." Id. at 856. This process makes it unlikely that

warnings provided by a supplier will reach all foreseeable users.

Even if warnings could reach all foreseeable users, the

"multitudinous commercial uses" to which bulk supplies are often

put would make it "crushingly burdensome" to require the supplier

to provide direct warnings. Id. at 856, 857. Massachusetts has

therefore chosen to allow suppliers of bulk supplies to satisfy

their duty to warn by warning intermediaries where reliance on the

intermediaries to transmit the warnings to end users is reasonable.

Appellants argue that "reasonable reliance" is also an

element of the sophisticated user defense, at least in cases where

an employer acts as an intermediary between the supplier and an

employee. They point to language in Carrel stating that the

sophisticated user defense is "derived from the Restatement

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(Second) of Torts § 388," and suggest that comment n of section 388

requires, in this case, an analysis of whether it was reasonable

for Dow, Goodrich, and Union Carbide to rely on Monsanto to warn

Taylor. Carrel, 852 N.E.2d at 109 (internal quotation marks and

citation omitted). In support of their position, appellants cite

both the district court below and courts in other jurisdictions

that have considered reasonable reliance when determining whether

the sophisticated user defense applies. See, e.g., Smith v. Walter

C. Best, Inc., 927 F.2d 736, 739-40 (3d Cir. 1990) (applying Ohio

law); Willis v. Raymark Indus., Inc., 905 F.2d 793, 796 (4th Cir.

1990) (applying Va. law); Goodbar v. Whitehead Bros., 591 F. Supp.

552, 557 (W.D. Va. 1984) (applying Va. law). In response,

appellees argue that under Massachusetts law, reasonable reliance

is not an element of the sophisticated user defense, and that the

Supreme Judicial Court rejected this approach when it distinguished

the sophisticated user and bulk supplier defenses in Hoffman.

We agree with appellees that reasonable reliance is not

an element of the sophisticated user defense as it exists under

Massachusetts law. In Hoffman, the SJC compared the defenses side

by side, and described only the bulk supplier defense as involving

a determination that the supplier reasonably relied on an

intermediary to transmit warnings. See Hoffman, 751 N.E.2d at 854.

Subsequently, when the court formally adopted the sophisticated

user defense in Carrel, it did not mention a reasonable reliance

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element. See Carrel, 852 N.E.2d at 109. Nor is reasonable

reliance discussed in Massachusetts pattern civil jury

instructions. See 1 Patrick Brady et al., Massachusetts Superior

Court Civil Practice Jury Instructions § 11.2.4(f) (2008) ("When

considering the extent and nature of the manufacturer's duty to

warn, the jury should take into account knowledge that the

manufacturer had, or could be expected to have, regarding the use

of the product as compared to the knowledge and skills of the

user.").7

Moreover, because the sophisticated user defense may

apply even where there is no intermediary between the supplier and

the injured party, Hoffman, 751 N.E.2d at 854, there may be no

reliance on an intermediary for a court or fact-finder to evaluate.

Even where an intermediary exists, as in this case, the rationale

of the sophisticated user defense is distinct. The question for

purposes of applying the sophisticated user defense is whether the

end user appreciated the particular danger because of its

sophistication, whatever the source of that sophistication.

Whether it would be reasonable for a supplier to rely on that user

to transmit a warning is a different question, and the answer to

that question may reveal little about what dangers the end user

already appreciated because of its sophistication.

7
Although pattern instructions are cited by Massachusetts
courts, they have not been adopted as binding.

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 Furthermore, the SJC has made clear its view that comment

n to section 388 of the Restatement, from which the factors for

assessing reasonable reliance derive, relates specifically to the

bulk supplier defense. Hoffman, 751 N.E.2d at 855 ("The bulk

supplier doctrine originates in the Restatement (Second) of Torts

§ 388 comment n (1965)."). The sophisticated user defense also

derives from section 388, but from comment k, not comment n. Gray,

676 N.W.2d at 277 n.6. Comment k discusses clause (b) of section

388, which restricts a supplier's duty to warn to cases where it

"has no reason to believe that those for whose use the chattel is

supplied will realize its dangerous condition." Restatement

(Second) Torts § 388(b) (1965) (emphasis added). Clause (b) thus

specifically concerns cases where the product user appreciates the

danger posed by the product -- the rationale behind the

sophisticated user and open and obvious doctrines. See Carrel, 852

N.E.2d at 109. Elaborating on clause (b), comment k provides: "It

is not necessary for the supplier to inform those for whose use the

chattel is supplied of a condition which a mere casual looking over

will disclose . . . . [T]he condition, although readily

observable, may be one which only persons of special experience

would realize to be dangerous." Id. (emphasis added). This

language provides that there is no duty to warn where a person "of

special experience" appreciates the danger posed by the supplier's

product -- the basis of the sophisticated user defense. Gray, 676

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N.W.2d at 277 n.6; cf. Slate v. Bethlehem Steel Corp., 496 N.E.2d

449, 647 & n.6 (Mass. App. Ct. 1986) (citing comment k in support

of the closely related open and obvious defense); Maldonado v.

Thomson Nat. Press Co., 449 N.E.2d 1229, 1231 (Mass. App. Ct. 1983)

(same).

The sophisticated user defense has been developed in

different ways by different jurisdictions. Some jurisdictions have

indeed incorporated a reasonable reliance analysis into the

sophisticated user defense. However, under Massachusetts law, the

sophisticated user defense does not incorporate a reasonable

reliance determination, even in cases where an intermediate party

exists between the supplier and the plaintiff. Instead, the

existence of the defense turns on whether the end user (either the

intermediate party, such as an employer, or the plaintiff) knows,

or reasonably should know, of the particular danger to be guarded

against in using the supplier's product. See Carrel, 852 N.E.2d at

112; Kenneth M. Willner, Failures to Warn and the Sophisticated

User Defense, 74 Va. L. Rev. 579, 592 (1988) (concluding that the

"duty approach" to the sophisticated user defense focuses, in a

three-party case, on the intermediary's "knowledge . . . to the

exclusion of any consideration of the reasonableness of defendants'

conduct").

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 2. Application to this case

a. The district court's reasonable reliance
finding

Appellants' principal argument on appeal is that a

reasonable jury could conclude that appellees Dow, Goodrich, and

Union Carbide did not reasonably rely on Monsanto to provide Taylor

with adequate warnings about the dangers of VC. They suggest that

appellees' participation in "secrecy agreements" to obtain

preliminary results from European cancer studies shows that they

knew Monsanto was not providing accurate safety information to its

employees. Appellants also point to record evidence that shows

that Indian Orchard employees did not know that VC could cause

cancer in humans until early 1974, and that controls at Indian

Orchard were not designed to protect against the dangers of liver

injury or cancer.

As we have explained, "reasonable reliance" is not an

element of the sophisticated user defense as it exists in

Massachusetts. The district court therefore erred when it stated:

"Given that Monsanto was the end user for purposes of the

'sophisticated user' defense, the next question is whether the

supplier Defendants were reasonable in relying on Monsanto to

provide adequate warnings to Claude Taylor."8 Even if the

8
In making this statement, the district court appears to
have relied on authorities from jurisdictions that -- unlike
Massachusetts -- incorporate a reasonable reliance analysis into

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appellees did not reasonably rely on Monsanto to provide warnings

to Taylor, they are not liable for failure to warn if Monsanto was

a sophisticated user of VC. Therefore, appellees were still

entitled to summary judgment on the appellants' failure to warn

claim if a reasonable jury could only conclude that Monsanto knew,

or reasonably should have known, of the dangers posed by appellees'

product, VC. See Carrel, 852 N.E.2d at 108 (supporting this

formulation). We now examine that question.9 In doing so, we cite

much of the same evidence cited by the district court in

establishing that appellees reasonably relied on Monsanto to

provide Taylor with warnings. That evidence is also relevant to

Monsanto's knowledge of the dangers posed by VC.

b. End user's knowledge of the danger

The sophisticated user defense applies where the end user

knows or reasonably should know of "the particular danger to be

guarded against." See id. at 112; see also Koken v. Black & Veatch

Constr. Co., 426 F.3d 39, 45-46 (1st Cir. 2005); Gillespie v.

Sears, Roebuck & Co., 386 F.3d 21, 29 (1st Cir. 2004). Here,

appellants focus on two particular dangers: the danger that chronic

exposure to VC at levels of 500 ppm may cause liver injury, and the

the sophisticated user defense. See discussion supra.
9
We may affirm an order of dismissal on any basis made
apparent from the record. Giragosian v. Ryan, 547 F.3d 59, 64 n.3
(1st Cir. 2008).

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danger that exposure to VC may cause cancer. These dangers are

distinct. As we will see, the discovery that exposure to VC can

cause injury to the liver occurred earlier than the discovery that

VC can cause cancer, including liver cancer.

i. Liver injury from VC exposure at 500 ppm

Appellee Dow first learned of the danger of liver injury

sometime in 1959, during a study conducted by its scientists Ted

Torkelson, F. Oyen, and V. K. Rowe. The Torkelson study exposed

rats and rabbits to VC at concentrations of 500 ppm and lower, up

to seven hours a day for a period of several months. In May 1959,

Rowe wrote W. E. McCormick of Goodrich about the study, which was

still ongoing, and suggested that "500 ppm is going to produce a

rather appreciable injury when inhaled 7 hours a day, five days a

week for an extended period." The Torkelson study was published in

October 1961, in the journal of the American Industrial Hygiene

Association ("AIHA"). Appellants' expert, James Jones, formerly an

industrial hygienist at the National Institute of Occupational

Safety and Health ("NIOSH"), described the publication of the

Torkelson study as a "seminal event," and stated that "all [PVC

manufacturers] would have been aware of it certainly." Jones

explained that Monsanto probably knew of the Torkelson study, "even

before [it was published], because I think the information was

actually shared with the industry a year or two before it was able

to be published in print." Indeed, Monsanto had personal contacts

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with Torkelson. Dr. Maurice Johnson, then a Monsanto physician,

testified that Torkelson personally informed him in 1963 of

"updated information regarding the hepatic toxicity" of vinyl

chloride.10

As the district court noted, Monsanto possessed a

considerable amount of medical expertise during this period. It

maintained an Occupational Medicine Department, whose staff

included toxicologists, physicians, and industrial hygienists. The

department conducted medical exams and epidemiological studies of

the health of Monsanto employees, and cooperated with outside

medical researchers from universities and government agencies who

were investigating VC toxicity. Several of the individuals who

worked in the department held leadership positions in professional

associations; for example, Elmer Wheeler, Monsanto's Assistant

Director for Industrial Hygiene and Toxicology, served as President

of the AIHA from 1959-1960, the period the Torkelson study was

being conducted and possibly disseminated to members of the PVC

10
The record reveals that the Torkelson study touched off
a debate about whether chronic exposure to 500 ppm was safe. In
1963, Dr. D. Lester of Yale University published an article
criticizing the Torkelson study, and supporting a 500 ppm exposure
limit for VC. Meanwhile, in 1962 and 1963, Dr. Herbert Stokinger
of ACGIH sought input from Dow scientist Rowe, in an effort to
reconcile the results of the Torkelson and Lester studies. After
a series of letters, ACGIH sided with Dr. Lester. However, further
research conducted in the 1960's by industry scientists and
physicians suggested that chronic exposure at levels less than 500
ppm would cause injury. The 1966 ACGIH publication, "Documentation
of Threshold Limit Values," discusses some of this research.

-22-
industry. Dr. Emmet Kelly, Director of the Occupational Medicine

Department, served as Chairman of ACC's Medical Advisory Committee

from 1959 to 1961, the year the Torkelson study was published.

Members of the department had access to, in the district court's

words, "Monsanto's . . . own library of materials on the potential

health effects of VC," which it had maintained since the mid-

1940's. Bruce Eley, an industrial hygienist who worked at

Monsanto, testified that the library contained a "wide variety of

medical and scientific journals," including "publications . . .

[that] addressed the health hazards, toxicology, [and] safe

handling practices of a wide array of compounds, including vinyl

chloride."

In light of Monsanto's leading position in the PVC

industry, the early communication between industry members about

Torkelson's results, the prompt publication of Torkelson's results

in a major journal, the personal contacts between Monsanto and

Torkelson, Monsanto's maintenance of a library of medical

literature on vinyl chloride, and its staff of industrial

hygienists, physicians, and toxicologists, a reasonable jury could

only conclude that Monsanto either did perceive or reasonably

should have perceived the danger that VC was toxic to the liver.

There is no basis in the record from which a reasonable jury could

conclude that a warning from Dow, Union Carbide, or Goodrich would

have enabled Monsanto to better perceive the danger, see Knowlton,

-23-
930 F.2d at 120, or that such a warning would have further deterred

Monsanto, and caused it to establish a lower VC exposure limit at

Indian Orchard, see Hoffman, 751 N.E.2d at 855 ("The sophisticated

user doctrine applies where a warning will have little deterrent

effect.").

ii. Cancer from VC exposure

The understanding that VC was carcinogenic first began to

emerge among members of the PVC industry roughly a decade after the

discovery of VC's toxicity to the liver. Sometime in late 1969 or

early 1970, Dr. Viola discovered that rats exposed to high levels

of VC over a twelve-month period developed cancers of the skin,

lungs, and bones. Dr. Viola first presented his findings in May

1970, at the Tenth International Cancer Congress in Houston, Texas.

The results were subsequently published in Cancer Research in May

1971.

Members of the PVC industry took immediate notice of Dr.

Viola's work. Dr. Viola was invited to meet with ACC's

Occupational Health Committee in Washington D.C. on May 5-6, 1971,

so members of the committee could "gather more information on his

studies." Monsanto's representative on the committee, Dr. Johnson,

was absent, but the record establishes that Monsanto would have

received the minutes from the meeting because it was a committee

member. Those minutes describe Dr. Viola's methods, the results of

his research, and his ongoing studies. The minutes also detail

-24-
industry research proposals, including both an animal cancer study

and an epidemiological study of workers in the PVC industry. On

November 16, 1971, Dr. Viola's work and industry research proposals

were again discussed by the ACC, at the "Vinyl Chloride Industry

Conference." This time, Monsanto's Dr. Johnson was present. ACC

also formed special committees to address different aspects of the

cancer issue. Dr. Johnson became a member of the "Ad Hoc Planning

Group for Vinyl Chloride Research," and Monsanto's Elmer Wheeler

became a member of the "Technical Task Group on Toxicology of Vinyl

Chloride Monomer Carcinogenicity," as well as other groups.11

As the understanding of the cancer risk grew in the early

1970's, ACC played a central role in communicating current research

results and in coordinating industry response efforts. For

example, in late 1971, ACC "became aware that additional animal

studies at lower exposure levels were being conducted in Europe" by

Professor Cesare Maltoni of the University of Bologna. In his

affidavit, Bruce Eley stated that Monsanto and the other members of

the ACC "desire[d] . . . to learn the results and the study designs

of the European animal studies." Members of the ACC were able to

secure release of the Maltoni study data by signing a "secrecy

agreement," which companies executed individually. Monsanto signed

11
During roughly the same period, the ACC Safety and Fire
Protection Committee was preparing an updated version of SD-56.
Minutes from meetings held on September 22, 1971, December 14,
1971, and March 7, 1972 reflect the revision and printing of SD-56.
Monsanto's G. L. Corbell was present at each of these meetings.

-25-
such an agreement on December 1, 1972, promising not to disclose

study results outside the company. Subsequently, Monsanto received

minutes from a January 17, 1973 meeting between Dr. Maltoni and ACC

representatives, as well as minutes from a January 30, 1973 ACC

meeting of the Vinyl Chloride Research Coordinators regarding the

Maltoni cancer research. On January 16, 1974, Monsanto learned

that Dr. Maltoni's team had discovered tumors in rats exposed to VC

concentrations as low as 250 ppm, and that Dr. Johnson, now

employed by Goodrich, had discovered liver cancer in two PVC

workers.

Read in the light most favorable to the appellants, the

record shows that Monsanto became aware, at roughly the same time

as appellees Dow, Goodrich and Union Carbide, of the

carcinogenicity of VC. Principally, Monsanto's representation on

the ACC committees that responded to the research of Dr. Viola and

Professor Maltoni ensured that it received current information,

sometimes before that information became public. Monsanto's

occupational medicine department was fully equipped to understand

and to act on that information. In the words of the district

court, "Monsanto . . . was fully as knowledgeable as . . . any of

its subsidiary suppliers, of the risks of VC." Therefore, on this

record, a reasonable jury could only conclude that Monsanto knew,

or reasonably should have known, of the risk of cancer posed by

exposure to VC. See Carrel, 852 N.E.2d at 108. For Dow, Goodrich,

-26-
and Union Carbide to have provided Monsanto with warnings -- when

all four companies were discovering these risks concurrently --

would have been plainly "superfluous." See id. at 112. Nor could

it be reasonably concluded that such a warning would have reduced

the likelihood of injury to Taylor, since Monsanto also knew that

exposure to VC could cause cancer. See Bavuso, 563 N.E.2d at 202.12

Appellees Dow, Goodrich and Union Carbide are therefore entitled to

summary judgment on Counts I-IV and Count X of the Complaint.13

B. Fraud

To establish a claim for fraud under Massachusetts law,

a plaintiff must prove that "the defendant 'made a false

representation of material fact with knowledge of its falsity for

12
Appellants also point out, as part of their sophisticated
user argument, that appellees sought to remove a recommendation for
lowering the VC exposure limit to 50 ppm from a University of
Michigan report on acroosteolysis among PVC workers. We do not
address a failure to warn claim based on acroosteolysis because
appellants do not allege that Taylor suffered from the disease.
Moreover, the record clearly establishes that Monsanto was informed
of the danger of acroosteolysis soon after it was discovered by
appellee Goodrich in 1964. For example, a Monsanto memorandum
dated July 9, 1965 discusses the occurrence of acroosteolysis at
Goodrich and recommends "quietly review[ing] the physical
examination records of our workers in PVC manufacturing."
13
In motions below, appellees also argued that they
discharged their duty to warn Taylor under the bulk supplier
defense. As noted, the bulk supplier defense does incorporate a
"reasonable reliance" analysis. However, the district court did
not reach the bulk supplier argument, dismissing the failure to
warn count on the basis of the sophisticated user defense. We need
not address the bulk supplier defense either, since the
sophisticated user defense is an independent and adequate basis for
dismissing the failure to warn counts.

-27-
the purpose of inducing the plaintiff to act thereon, and that the

plaintiff reasonably relied upon the representation as true and

acted upon it to his damage.'" Russell v. Cooley Dickinson Hosp.,

Inc., 772 N.E.2d 1054, 1066 (Mass. 2002) (quoting Danca v. Taunton

Sav. Bank, 429 N.E.2d 1129, 1133 (Mass. 1982)); Restatement

(Second) of Torts § 525 (1977).

In contrast to misrepresentation, nondisclosure generally

does not give rise to liability in tort. Wolf v. Prudential-Bache

Securities, Inc., 672 N.E.2d 10, 12 (Mass. App. Ct. 1996)

("Nondisclosure does not amount to fraud and is not a conventional

tort of any kind." (internal quotation marks and citation

omitted)). Liability for nondisclosure exists under Massachusetts

law only where there is a duty to disclose. Knapp v. Neptune

Towers Assocs., 892 N.E.2d 820, 824 (Mass. App. Ct. 2008); see In

re Neurontin Mktg., Sales Practices and Prods. Liab., No. 04-10981,

2009 WL 1464851, at *8 (D. Mass. May 26, 2009); Restatement

(Second) of Torts § 551 (1977). Such a duty exists where "'(i)

there is a fiduciary or other similar relation of trust and

confidence, (ii) there are matters known to the speaker that he

knows to be necessary to prevent his partial or ambiguous statement

of the facts from being misleading, or (iii) the nondisclosed fact

is basic to, or goes to the essence of, the transaction.'" Knapp,

892 N.E.2d at 824 (quoting Stolzoff v. Waste Sys. Int'l, Inc., 792

N.E.2d 1031, 1044 (Mass. App. Ct. 2003)); see also Restatement

-28-
(Second) of Torts § 551 (1977) (listing five sources of a duty to

disclose). Where nondisclosure constitutes a tort, it is also

sometimes called "fraudulent concealment," and, following the

district court, we will use this terminology here.14

Here, appellants have advanced claims of both fraud and

fraudulent concealment. After significant discovery and

development of the parties' claims, the district court

characterized the fraud count as "[i]n essence" alleging that the

Manufacturer/Supplier Defendants "were responsible for the

misleading contents of the MCA's Chemical Safety Data Sheet SD-56,

which understated the risks of VC."15 Appellants do not challenge

this characterization, but argue that the court was mistaken in its

analysis of whether SD-56 could support a claim for fraud or

fraudulent concealment. We therefore confine our attention to SD-

56. See United States v. Politano, 522 F.3d 69, 75 n.5 (1st Cir.

14
We note, for purposes of clarity, that "fraudulent
concealment" also refers to the rule that tolls the statute of
limitations when a defendant conceals the basis of a cause of
action from a plaintiff. See Demoulas v. Demoulas Super Mkts.,
Inc., 677 N.E.2d 159, 174 (Mass. 1997).
15
Appellants' fraud claim differs in an important respect
from the failure to warn claim discussed above. For purposes of
analyzing the sophisticated user defense to the failure to warn
claim, Monsanto was the "end user." Therefore, our analysis
focused on what Monsanto knew or did not know about the dangers of
VC, irrespective of SD-56, and not on the relationship between the
Manufacturer/Supplier Defendants and Taylor himself. In contrast,
to prevail on the fraud claim, appellants must prove, inter alia,
that the appellees were responsible for misrepresentations,
contained in SD-56, on which Taylor relied.

-29-
2008) (noting that arguments not made on appeal are waived).16

Notably, we do not reach the question of whether the

representations in SD-56 are false or misleading, as appellants

allege.

The district court dismissed the fraud count based on SD-

56 because (1) the record contained no evidence that any of the

Manufacturer/Supplier Defendants were responsible for the allegedly

misleading contents of SD-56, and (2) the record contained no

evidence that Taylor "ever saw, heard, or read that document," and

thus, no evidence that he relied on it. Appellants argue that the

district court erred on both accounts. They observe that SD-56 was

drafted and approved by ACC subcommittees on which Dow, Goodrich,

and Union Carbide were members, and point out that "[a]ppellee ACC

published both the 1954 and 1972 versions of SD-56." Appellants

also argue that the record contains evidence from which a jury

could reasonably conclude that Taylor relied on SD-56, since the

document was transcribed word-for-word into the Indian Orchard

"Vinyl Chloride Polymerization Standard Procedure" manual, which

was used to train Taylor. Appellees counter that the district

court was correct to conclude that Taylor did not rely on SD-56.

16
The record contains a large number of representations
made by the Manufacturer/Supplier Defendants concerning the safety
of VC. However, appellants did not argue on appeal that these
representations supported their fraud claim. It is not the court's
responsibility to "ferret out and articulate" the record evidence
material to the appellants' claims. Conto v. Concord Hosp., Inc.,
265 F.3d 79, 81-82 (1st Cir. 2001).

-30-
Even if he did rely, appellees say, his reliance on SD-56 did not

proximately cause his injuries.

We agree with the district court that the record contains

no evidence from which a reasonable jury could conclude that

appellees were responsible for the allegedly false or misleading

representations in SD-56. In Massachusetts, a person is generally

liable in common-law fraud only for fraudulent representations for

which he himself is responsible. See, e.g., Metro. Life Ins. Co.

v. Ditmore, 729 F.2d 1, 4 (1st Cir. 1984) (defendant filled out

insurance claim form); Mass. Laborers' Health & Welfare Fund v.

Philip Morris, Inc., 62 F. Supp. 2d 236, 241-42 (D. Mass. 1999)

(defendants issued statements in mass media); Sebago, 18 F. Supp.

2d at 77, 86 (defendant published brochure and mailed it to

plaintiffs); Kozdras v. Land/Vest Props., Inc., 413 N.E.2d 1105,

1110 (Mass. 1980) (defendant submitted petition for confirmation

and registration of title); Reisman v. KPMG Peat Marwick LLP, 787

N.E.2d 1067, 1067-68 (Mass. App. Ct. 2003) (defendant prepared

audit opinion); Evans v. Lorillard Tobacco Co., No. 04-2840A, 2007

WL 796175, at *4 (Mass. Super. Ct. Feb. 7, 2007) (defendants

published advertisements). A few exceptions do exist; a person may

also be liable for fraud if his agent makes a fraudulent

misrepresentation, or if he is part of a partnership that jointly

defrauds someone. Madigan v. McCann, 190 N.E.2d 215, 217 (Mass.

-31-
1963) (partnership); Reisman, 787 N.E.2d at 1066 (agent).17 Neither

exception has been raised here.18

The record shows that both the 1954 and 1972 versions of

SD-56 were published and copyrighted by ACC, not by Dow, Goodrich,

or Union Carbide. However, appellants did not name ACC as a

defendant in the fraud count of the Complaint. Thus, the question

is whether a reasonable jury could conclude that Dow, Goodrich, or

Union Carbide -- who were named in the count -- were also

responsible for the safety representations contained in SD-56. As

we explain below, we see no basis in the record from which a

reasonable jury could come to this conclusion.

Turning first to the 1954 SD-56, evidence in the record

shows that it was drafted by one or more members of ACC's General

Safety Committee. An October 2, 1953 memorandum written by A. J.

Wuertz, Secretary of the General Safety Committee, suggests that

"members of the Committee," along with Dow, Firestone, Goodrich,

and Goodyear Tire & Rubber Company, were able to suggest revisions

17
In some jurisdictions, defendants who "participate[]" in
defrauding a plaintiff may face (primary) liability for common-law
fraud. C.J.S. Fraud § 105 ("[A] person may not be held liable for
a fraudulent misrepresentation unless he or she made it himself or
herself or authorized another to make it for him or her or in some
way participated therein.") (collecting cases).
18
In the Complaint, appellants refer to ACC as the "agent"
of the Manufacturer/Supplier Defendants. However, appellants did
not develop or substantiate this assertion, either below or on
appeal.

-32-
to a preliminary draft of SD-56, and that at least some of these

suggested revisions were incorporated. An October 6, 1953

memorandum written by Dr. A. G. Cranch suggests that Union Carbide

was also provided an opportunity to comment on a draft.

The record contains similar evidence regarding the

authorship of the 1972 version of SD-56. Minutes from September 22

and December 14, 1971 meetings of the ACC Safety and Fire

Protection Committee indicate that a draft of the updated SD-56 was

then being circulated for review. Representatives from Dow,

Goodrich, and Union Carbide attended the meetings. At the

September meeting, the committee "discussed problems in finalizing

the medical management sections" of SD-56 "since additional

research is to be carried out on the chronic effects of the

material," but resolved to "proceed with publication . . . and to

include only that medical information which is currently

available." The final version, which was printed in March 1972,

states that it was "[p]ublished as an activity of the [ACC's]

Safety and Fire Protection Committee," and lists several other ACC

committees "which have cooperated in its preparation."

A reasonable jury could conclude on the basis of this

evidence that (1) Dow, Goodrich, and Union Carbide suggested

revisions to a draft version of the 1954 SD-56, and (2) that Dow,

Goodrich, and Union Carbide were members of the committee that

drafted the 1972 SD-56. However, it would be speculative to

-33-
conclude that these appellees were responsible for the allegedly

false or misleading statements in SD-56. For example, the record

does not reveal who is responsible for the statements: "[T]h[e]

[500 ppm] level provides a considerable margin of safety for

industrial exposures" (in the 1972 SD-56), and "Aside from the risk

of fire or explosion, vinyl chloride presents no other very serious

problem in general handling" (in the 1954 SD-56). As the district

court explained the problem, "[t]he individual contributions [the

appellees] made in collecting, organizing, and compiling the

contents of SD-56 remain unknown."19 Appellants have cited no

Massachusetts authority, and we know of none, which supports

extending common-law fraud liability to defendants whose

contribution to allegedly false or misleading statements is

essentially "unknown."

We recognize, of course, that the ACC committees that

wrote SD-56 included representatives from Dow, Goodrich, and Union

Carbide, and that it is possible that someone from one or more of

these companies authored portions of SD-56. However, to hold a

specific supplier liable, as opposed to ACC itself (under whose

auspices SD-56 was written and published), the record must contain

19
What little is known appears to be unfavorable to the
appellants. For example, Bruce Eley, an industrial hygienist who
worked at Monsanto, suggested that the 500 ppm exposure limit in
the 1954 SD-56 came from the ACGIH: "The 500 ppm maximum allowable
concentration (MAC) of vinyl chloride to which SD-56 referred was
a recommendation that had been issued in April 1946 by the American
Conference of Governmental Industrial Hygienists . . . ."

-34-
some evidence that connects that supplier to the allegedly

fraudulent statements in SD-56, which is a sizable document,

containing many representations about VC, its proper handling, and

the health hazards it poses. Without such evidence, appellees Dow,

Goodrich, and Union Carbide are entitled to summary judgment on

Count V.

C. Civil Conspiracy

Massachusetts recognizes two types of civil conspiracy,

so-called "true conspiracy" and conspiracy based on section 876 of

the Restatement (Second) of Torts. Kurker v. Hill, 689 N.E.2d 833,

836 (Mass. App. Ct. 1998); see also Grant v. John Hancock Mut. Life

Ins. Co., 183 F. Supp. 2d 344, 362-63 (D. Mass. 2002). The second

type of conspiracy, based on section 876 of the Restatement, is a

form of vicarious liability for the tortious conduct of others.20

20
There is some question about the extent to which
Massachusetts recognizes the principles of conspiracy laid out in
section 876. The Massachusetts Supreme Judicial Court has
previously cited and applied section 876. See Nelson v. Nason, 177
N.E.2d 887, 888 (Mass. 1961). However, the court has not expressly
adopted section 876, Kurker, 689 N.E.2d at 837, and, in Kyte v.
Philip Morris Inc., it declined to "determine whether the
principles of § 876 and the law of the Commonwealth are, in all
respects, in complete accord," 556 N.E.2d 1025, 1027 (Mass. 1990).
Nonetheless, Massachusetts courts have repeatedly invoked section
876 or principles similar to it. See, e.g., Kurker, 689 N.E.2d at
836; Stock v. Fife, 430 N.E.2d 845, 849 n.10 (Mass. App. Ct. 1982);
see also Orszulak v. Bujnevicie, 243 N.E.2d 897, 898 (Mass. 1969)
("Persons who race automobiles on a public way are liable in
negligence for injuries caused by one of them."); Gurney v. Tenney,
84 N.E. 428, 430 (Mass. 1908) (similar to section 876(a)); Brown v.
Perkins, 83 Mass. (1 Allen) 89, 98 (1861) (similar to section
876(b)). We have also previously recognized the use of section 876

-35-
See Mass. Laborers', 62 F. Supp. 2d at 244; Restatement (Second) of

Torts § 876 (1979). Because it is vicarious liability, this type

of civil conspiracy requires an underlying tort. Mass. Laborers',

62 F. Supp. 2d at 244. The conspiracy consists in agreeing to, or

assisting in, this underlying tort. Massachusetts courts have

recognized two theories of liability under section 876: (1)

"concert of action," and (2) "substantial assistance" or "aiding

and abetting." See Maruho Co., Ltd. v. Miles, Inc., 13 F.3d 6, 9

(1st Cir. 1993); Payton v. Abbott Labs, 512 F. Supp. 1031, 1035 (D.

Mass. 1981).

Here, appellants advance a "substantial assistance"

theory. Under the substantial assistance theory, a defendant is

liable for the conduct of another if he "knows that the other's

conduct constitutes a breach of duty and gives substantial

assistance or encouragement to the other so to conduct himself."

Restatement (Second) of Torts § 876(b), quoted in Kurker, 689

N.E.2d at 837. To recover under this theory, the plaintiff must

establish two elements. First, the defendant must give

"substantial assistance or encouragement" to a party engaging in

tortious conduct. Payton, 512 F. Supp. at 1035; Haemonetics Corp.

v. Dupre, 238 B.R. 224, 228 (D. Mass. 1999). Only assistance or

encouragement that is a "substantial factor in causing the

by Massachusetts courts. See, e.g., Santiago v. Sherwin Williams
Co., 3 F.3d 546, 551-52 (1st Cir. 1993).

-36-
resulting tort" exposes the actor to liability. Restatement

(Second) of Torts § 876 cmt. d; see also Wilson v. DiCaprio, 717

N.Y.S.2d 174, 175 (N.Y. App. Div. 2000). To determine whether this

threshold is met, courts should consider "the nature of the act

encouraged, the amount of assistance given by the defendant, his

presence or absence at the time of the tort, his relation to the

other and his state of mind." Restatement (Second) of Torts § 876

cmt. d, quoted in Payton, 512 F. Supp. at 1035. Second, the

defendant must possess an "unlawful intent." Payton, 512 F. Supp.

at 1035. Unlawful intent comprises two distinct mental states:

knowledge that the other's conduct is tortious, and an intent to

substantially assist or encourage that conduct.21 Id.; Lucas v.

Allen, 1997 Mass. App. Div. 9, 9 (Mass. Dist. Ct. 1997); Smith v.

Egan, No. 94-3909-E, 1996 Mass. Super. LEXIS 446, at *24 (Mass.

Super. Ct. May 17, 1996); see Kyte, 556 N.E.2d at 1028 (citing

Halberstam v. Welch, 705 F.2d 472, 478 (D.C. Cir. 1983)); Kurker,

689 N.E.2d at 837. Unlawful intent does not require an agreement

21
While "intent" is notoriously a potentially confusing
term that may conflate the distinction between knowledge and
purpose, United States v. Boidi, 568 F.3d 24, 30 (1st Cir. 2009),
Massachusetts aiding and abetting liability generally requires that
a defendant share the mental state of the principal violator, see
Planned Parenthood League of Mass., Inc. v. Blake, 631 N.E.2d 985,
993 (Mass. 1994); Beaupre v. Cliff Smith & Assocs., 738 N.E.2d 753,
767 n.23 (Mass. App. Ct. 2000). Here, the alleged underlying tort
of fraud requires a purpose to induce the plaintiff's action upon
a false statement, see Russell, 772 N.E.2d at 1066, so the
"Conspiring Defendants" (those named in the conspiracy count) would
share Monsanto's alleged intent only if they shared Monsanto's
alleged objective to defraud Monsanto's employees.

-37-
between the defendant and the tortfeasor. Payton, 512 F. Supp. at

1035 (citing Brown, 83 Mass. (1 Allen) at 97-98).

The underlying tort on which appellants base their

substantial assistance claim is fraud by Monsanto. Appellants

argue that Monsanto defrauded Taylor by providing him with the

allegedly fraudulent safety information in SD-56. They allege that

the Conspiring Defendants substantially assisted Monsanto in

committing this fraud, by, for example, entering into secrecy

agreements not to divulge the results of the Maltoni cancer study.

See supra discussion in section III(B)(2)(b)(ii). The district

court rejected this argument because it concluded, among other

things, that there was no evidence that the Conspiring Defendants

knew what information Monsanto disseminated to its employees.

Appellants argue that the district court erred, and that the record

establishes that the Conspiring Defendants knew that Monsanto

provided its employees with the safety information in SD-56.

Appellees disagree.

We agree with the district court that, on this record, a

reasonable jury could not conclude that the Conspiring Defendants

substantially assisted Monsanto in defrauding Taylor. While the

record contains evidence that the Conspiring Defendants's actions

did in fact assist Monsanto,22 it contains no evidence from which

22
The record contains evidence supporting the conclusion
that at least some of the appellees assisted in providing allegedly

-38-
a reasonable jury could conclude that the appellees had the

"unlawful intent" necessary for substantial assistance liability.

An actor has unlawful intent when he knows that another's conduct

is tortious and intends to substantially assist or encourage that

conduct. Payton, 512 F. Supp at 1035. While it is clear from the

record that SD-56 was widely used in the PVC industry, there is no

support for the conclusion that appellees knew Monsanto was

incorporating representations from SD-56 into its own Standard

Procedure manual. There is no evidence that Monsanto discussed its

safety practices with appellees or granted them access to its

plants. See Kyte, 556 N.E.2d at 1028 (rejecting a claim of civil

conspiracy for manufacturing cigarettes sold to convenience stores

who sold them to minors because "[a] general awareness that retail

stores sell cigarettes to minors is not sufficient to show the

level of knowledge that would give rise to liability for

conspiracy"). Moreover, the record shows that Monsanto drew on a

number of sources for safety information; one could not reasonably

infer from the fact that Monsanto was using SD-56 the conclusion

fraudulent information, which Monsanto supplied to Taylor. ACC
authored SD-56 and distributed it with several appellees.
Companies appeared to use SD-56 to understand the hazards of
working with VC and to establish industrial hygiene practices. In
his affidavit, Monsanto industrial hygienist Eley described SD-56
as being "widely relied upon" in the PVC industry. He further
testified in deposition, "It's always been my understanding in
talking with my counterparts . . . that the series of data sheets
published by [ACC] were in fact widely distributed and widely
used."

-39-
that it was repeating SD-56, word-for-word, to its employees.

Therefore, it would be speculative to conclude that appellees knew

that Monsanto was defrauding Taylor by providing him with false

information about the hazards of VC.23

One final comment. An illustration provided in the

Restatement section 876(b) suggests that a defendant who

specifically advises another party to commit conduct constituting

a particular tort may be subject to liability under a substantial

assistance theory even if he is unaware of whether the tort was

accomplished. See Restatement (Second) of Torts § 876 cmt. d &

illus. 5. There is some indication that Massachusetts does not

accept this wrinkle, see Kyte, 556 N.E.2d at 1028, and we cannot in

the context of a diversity case expand the tort law of

Massachusetts beyond its present state, see Phoung Luc v. Wyndham

Mgmt. Corp., 496 F.3d 86, 90 n.5 (1st Cir. 2007). Independently,

23
The question of whether the Conspiring Defendants shared
in any intent that Monsanto employees be defrauded is a closer one
and might have comprised an issue for the jury to determine, if it
were not otherwise clear from the record that the Conspiring
Defendants lacked knowledge of Monsanto's alleged fraud and
therefore lacked unlawful intent. The 1954 version of SD-56 states
that "[e]mployee education and training should emphasize the need
of handling vinyl chloride according to the methods outlined in
this data sheet." The 1972 version of SD-56 contained similar
language. Still, this is not clear-cut evidence that the
Conspiring Defendants intended for Taylor or other employees to
rely on claims that the 500 ppm standard was safe, as opposed to
intending for employees to follow safety procedures laid out in SD-
56.

-40-
it is enough to note that this argument was never made in the

appellants' briefs, so it is unnecessary to reach it here.

IV.

For the reasons stated above, we affirm the order of the

district court.

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