UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SUNIL EAPPEN, as administrator of
the estate of MATTHEW EAPPEN,

Plaintiff,

V.

LOUISE WOODWARD,

Defendant.

NOW COMES Plaintiff Sunil Eappen ("Plaintiff"), in his representative capacity, and moves pursuant to Fed. R. Civ. P. 65 for preliminary injunctive relief as follows:

(a) restraining Defendant (and her assignees and/or representatives acting on her authority), directly or indirectly, from entering into any agreement, formal or informal, to receive compensation or consideration in return for any description, written or oral, of her life or experiences, without providing contemporaneous notice of the terms of such agreement to this Court and to counsel for Plaintiff;

(b) restraining defendant (and her assignees and/or representatives acting on her authority), directly or indirectly, from alienating, distributing or otherwise spending any monies received on account of any agreement, formal or informal, to receive compensation or consideration in return for any description, written or oral, of her life or experiences; and

(c) directing that Plaintiff may obtain on an expedited basis discovery (including depositions) from Defendant regarding financial assets available or to be available to satisfy a judgment in favor of Plaintiff.

AS GROUNDS THEREFOR, Plaintiff asserts that such preliminary relief is necessary to preserve an adequate remedy at law for the claims raised in his complaint, as more fully described in the Memorandum in Support of Plaintiff's Motion for Preliminary Injunction which is filed herewith.

Respectfully submitted,

For the Plaintiff Sunil Eappen,
By his attorneys,

Fredric L. Ellis, BBO # 542075
Edward D. Rapacki, BBO # 411910
Edward A. Broderick, BBO # 566826
Ellis & Rapacki
85 Merrimac Street, Suite 300
Boston, MA 02114
(617) 523-4800

Edward C. Bassett, Jr., BBO #033060
Mirick, O'Connell, DeMallie & Lougee, LLP
1700 Bank Boston Tower
100 Front Street
Worcester, MA 01608-1477
(508) 791-8500

Date: June 16, 1998

SUNIL EAPPEN, as administrator of
the estate of MATTHEW EAPPEN,

Plaintiff,

V.

LOUISE WOODWARD,

Defendant.

INTRODUCTION Plaintiff Sunil Eappen ("Plaintiff"), administrator of the estate of Matthew Eappen, has filed a civil action against Defendant Louise Woodward ("Defendant") on behalf of the estate and Matthew's next of kin, seeking damages for Matthew's wrongful death and conscious suffering pursuant to M.G.L. c. 229, Sections 2 and 6. Defendant has already been convicted in state court for the involuntary manslaughter of Matthew Eappen. Plaintiff also has filed a motion for a preliminary injunction to protect Plaintiff's damages remedy by directing Defendant to notify this Court and Plaintiff's counsel of any agreement entered into by Defendant (or her representative) by which Defendant (or her heirs or assigns) shall receive compensation in return for any description or account of her life or experiences, restraining Defendant (or her representatives) from alienating, distributing, or spending any funds generated by such an agreement, and ordering expedited discovery from Plaintiff regarding her financial assets.

STATEMENT OF FACTS

On February 9, 1997, eight month old Matthew Eappen died at Children's Hospital, Boston, following five days of emergency medical care. Affidavit of Sunil Eappen ("Eappen Affidavit"), attached hereto as Exhibit 1, at Paragraph 4; Death Certificate, attached as Exhibit A to the Eappen Affidavit. The cause of Matthew Eappen's death as listed on the death certificate was blunt head trauma. Death Certificate. Matthew's caregiver, Defendant, a British national serving as an au pair in the Eappen household, subsequently was convicted of the involuntary manslaughter of Matthew Eappen. Docket Sheet, Commonwealth v. Louise Woodward, Middlesex (Mass.) Crim. No. 97-00433 ("Docket Sheet"), attached as Exhibit C to the Eappen Affidavit, at 12; Eappen Affidavit at Paragraph 7.

Matthew's father, Sunil Eappen (the plaintiff in this proceeding); his mother, Debra Eappen; and his older brother, Brendan Eappen, survive Matthew Eappen. Eappen Affidavit at Paragraph 8-9. Matthew's death has deprived his parents and brother of great joy, love, companionship, and comfort they reasonably would have derived from Matthew's continued life. Eappen Affidavit at Paragraph 9. While no amount of money can fully compensate Matthew's heirs and next of kin for their loss, the medical, funeral and burial expenses incurred as a result of Matthew's treatment and death exceeded $50,000. Id. at Paragraph 10.

Defendant is a British national who arrived in the United States pursuant to a J-1 cultural exchange visa in or about June 1996. Id. at 11. Defendant obtained her visa through the agencies of her sponsor, EF Au Pair, a division of EF Educational Foundation for Foreign Study, Inc. ("EF Au Pair"). Id. Defendant's visa expired in or about June 1997. Id. On information and belief, Defendant resides temporarily in Marblehead, Massachusetts, either at the home of her attorney, Elaine Whitfield-Sharp, or at the home of Timothy Hunt. Id. at Paragraph 12.

With regard to her financial assets, Defendant has stated to Mr. and Mrs. Eappen that she and her family are of "modest means." Id. at Paragraph 11. On information and belief, Defendant has no significant assets either in Massachusetts or in England. Id.

In an effort to preserve an adequate legal remedy, Plaintiff has moved for preliminary injunctive relief. Specifically, Plaintiff requests that this Court enter an Order:

(a) restraining Defendant (and her assignees and/or representatives acting on her authority), directly or indirectly, from entering into any agreement, formal or informal, to receive compensation or consideration in return for any description, written or oral, of her life or experiences, without providing contemporaneous notice of the terms of such agreement to the Court and to counsel for Plaintiff;

(b) restraining Defendant (and her assignees and/or representatives acting on her authority), directly or indirectly, from alienating, distributing or otherwise spending any monies received on account of any agreement, formal or informal, to receive compensation or consideration in return for any description, written or oral, of her life or experiences; and

(c) directing that Plaintiff may obtain on an expedited basis discovery (including depositions) from Defendant regarding financial assets available or to be available to satisfy a judgment in favor of Plaintiff.

In considering Plaintiff's motion, this Court must consider:

(1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest.

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996).

A. Plaintiff Will Likely Succeed On The Merits Because Defendant Is Precluded From Relitigating Her Liability For Matthew Eappen's Death.

Where federal jurisdiction relies upon diversity and the prior adjudication was decided by a Massachusetts Court, this Court must apply Massachusetts law on collateral estoppel. Kowalski v. Gaizne, 914 F.2d 299, 302 (1st Cir. 1990). "Under Massachusetts law, 'a party to a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to preclude the criminal defendant from relitigating an issue decided in the criminal prosecution.'" Id., quoting Aetna Casually and Surety Co. v. Niziolek, 395 Mass. 737, 742, 481 N.E. 2d 1356, 1360 (1985). Collateral estoppel applies if (1) the issue decided in the prior adjudication is identical with the one presented in this action, (2) there was a final judgment on the merits of the prior adjudication, and (3) the party against whom estoppel is sought was a party or in privity with a party to the prior adjudication. Massachusetts Property Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751, 753, 481 N.E. 2d 1364, 1366 (1985).

The issue of Defendant's liability for the death of Matthew Eappen is precisely the issue decided in the state criminal prosecution. Massachusetts' wrongful death statute, M.G.L. c. 229, Section 2, provides that a defendant shall be liable for damages if the decedent's death is caused by "a willful, wanton or reckless act." Involuntary manslaughter in Massachusetts is defined as "an unlawful homicide, unintentionally caused ... by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." Commonwealth v. Martinez, 393 Mass. 612, 613, 473 N.E. 2d 167 (1985), quoting Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E. 2d 211 (1967).

Massachusetts' "long-standing custom has been to measure reckless conduct by the same test whether reckless conduct is alleged as the basis for liability in tort or as the basis for guilt of involuntary manslaughter." Sandler v. Commonwealth, 419 Mass. 334, 336, 644 N.E. 2d 641 (1995).¹ Accordingly, the issue of Defendant's liability in tort for Matthew's death is identical with issue decided in the criminal prosecution. Because a final judgment of conviction was entered in the Superior Court and Defendant was a party to that proceeding, see Docket Sheet at 2, the doctrine of collateral estoppel prevents Defendant from contesting her liability in this wrongful death lawsuit. See Kowalski v. Gagne, 914 F.2d at 303 (prior conviction for second degree murder, which encompasses elements of willful, wanton or reckless conduct, precludes defendant from contesting liability under Massachusetts wrongful death statute).

B. In The Absence Of The Requested Injunction, There Is The Potential For Asset Dissipation And Unenforceability Of A Damages Award.

While a party moving for an injunction bears the burden of demonstrating that a denial of injunctive relief would cause irreparable harm, "the predicted harm and the likelihood of success on the merits must be juxtaposed and weighed in tandem." Ross- Simons of Warwick, Inc. v. Baccarat, Inc., 102 F. 3d at 19. Irreparable harm is subject to a "sliding scale" analysis, wherein the greater the likelihood of merits success, the less is required in the way of irreparable harm. Gately v. Commonwealth of Massachusetts, 2 F. 3d 1221, 1232 (1st Cir. 1993); EEOC v. Astra USA, Inc., 94 F. 3d 738, 743 (1st Cir. 1996). Given the likelihood (or, indeed, certainty) of Plaintiffs success on the merits of the wrongful death claim, Plaintiff need show only a "cognizable threat" that his legal remedies are inadequate in order to obtain preliminary relief. Ross-Simons, supra at 18- 19. In the unique circumstances of this case, there is such a threat that ajudgment against Defendant will be unenforceable in the absence of the injunctive relief sought by Plaintiff.

Where a plaintiffs complaint seeks money damages, a preliminary injunction is appropriate "when necessary to protect the damages remedy," Teradyne, Inc. v. Mostek Corp., 797 F. 2d 43, 53 (1st Cir. 1986), or where "necessary to assure the presence of an adequate legal remedy." Unisys Corp. v. Dataware Products, Inc., 848 F. 2d 311, 314 (1st Cir. 1988). Here, Defendant's precarious financial condition and the claims of EF Au Pair to proceeds of any payments made to Defendant raise serious concerns that insufficient assets will be available for collection. And the likelihood that any such assets will be located in England presents a considerable challenge to execution of a judgment. The injunction sought by Plaintiff is warranted in the present circumstances to ensure that adequate assets are available for payment of the expected judgment and that execution of such judgment can be accomplished.

Defendant is a nineteen-year old citizen of England who resides in Massachusetts on the basis of an expired visa. On information and belief, she is unemployed and without significant liquid assets here or in her native country. Yet, as a direct consequence of her notoriety resulting from Matthew Eappen's death, Defendant may earn hundreds of thousands of dollars in return for publication rights to her thoughts and experiences. See Affidavit of Fredric L. Ellis ("Ellis Affidavit"), attached hereto as Exhibit 2, at Paragraphs 3, 5, 7 and exhibits attached thereto. ² But Plaintiff, in his representative capacity, will be able to recover a money judgment from such proceeds only to the extent that they are not otherwise dissipated, alienated or placed beyond the reach of this Court's lawful jurisdiction.

Defendant has acknowledged her "moral obligation to repay E.F. Au Pair." Ellis Affidavit at Paragraph 4. Defendant also has acknowledged that her obligation to reimburse E.F. Au Pair "has naturally been a subject of informal discussions" between her family and the agency. Id. Given that Defendant and her family are "modest means", any such repayment would seriously reduce the amount of funds available to satisfy a judgment in this case.

The risk that any funds obtained by Defendant will be transferred to E.F. Au Pair, together with the risk that a money judgment obtained in this case may not be fully collectable in England, means that Plaintiff s representative claims are not "adequately compensable by money damages, [and therefore] irreparable harm is a natural sequel." Starlight Sugar, Inc. v. Soto, 114 F.3d 330, 332 (lst Cir. 1997), quoting Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F. 3d at 18-19.

C. The Balance Of Relevant Impositions Weighs In Favor Of Granting Plaintiff's Motion.

In considering Plaintiff s motion for preliminary injunction, this Court must balance the harm of denying such relief against the harm to Defendant of issuing an injunction. Hewlett-Packard Co. v. Genrad, Inc., 882 F. Supp. 1141, 1153 (D.Mass. 1995). As with irreparable harm analysis, where the likelihood of a plaintiff's success on the merits is great, "less weight is to be given a defendant's loss." TEC Engineering Corp. v. Budget Molders Supply, Inc., 927 F. Supp. 528, 535 (D. Mass. 1996), quoting FDIC v. Elio, 39 F.3d 1239, 1248 (1st Cir. 1994). Here, the likelihood of success on the merits is great and little if any harm will be visited upon Defendant as a consequence of the requested injunction. Private donations amounting to at least $200,000 are available to defray Defendant's and her family's travel and living expenses. Ellis Affidavit at Paragraph 6 and exhibits attached thereto. Plaintiff does not now seek to attach or otherwise encumber these substantial funds. If, as Defendant has stated publicly, neither she nor her family have entered into any agreement to publicize her thoughts or experiences, no harm to her will follow from the allowance of Plaintiff's motion. Rather, the injunction is a "reasonable measure to preserve the status quo pending final determination" of the claims raised in Plaintiff's complaint. See Teradyne, Inc. v. Mostek, Corp., 797 F2d at 53, quoting Deckert v. Independence Shores Corporation, 311 U.S. 282, 290 (1940).

D. The Injunction Sought By Plaintiff Serves The Public Interest In Compensating Victims Of Unlawful Conduct.

The injunction sought by Plaintiff seeks to assure the presence of an adequate remedy for conduct that is both tortious and criminal. To that end, the injunction serves the public interest. Cf Aversa v. United States, 99 F. 3d 1200, 1203 (1st Cir. 1996)("well-founded damage suits promote the public interest in compensating victims and deterring unlawful conduct"). Moreover, ensuring Plaintiff's recovery from the proceeds of publication rights serves the "compelling [state] interest in ensuring that criminals do not profit from their crimes." Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105, 119, 112 S. Ct. 501, 510 (1991). Accordingly, Plaintiff's request for injunctive relief satisfies the four-part test for preliminary injunctive relief and should be granted.

CONCLUSION

For all the reasons stated above, Plaintiff respectfully requests this Court to issue a preliminary injunction in the form annexed to Plaintiff's Motion.

Respectfully submitted,
For the Plaintiff

Fredric L. Ellis, BBO # 542075
Edward D. Rapacki, BBO # 411910
Edward A. Broderick, BBO # 566826
Ellis & Rapacki
85 Merrimac Street, Suite 300
Boston, MA 02114
(617) 523-4800

Edward C. Bassett, Jr., BBO #033060
Mirick, O'Connell, DeMallie & Lougee, LLP
1700 Bank Boston Tower
100 Front Street
Worcester, MA 01608-1477
(508) 791-8500

Date: June 16, 1998

¹The Massachusetts Supreme Judicial Court's "recent practice has been simply to refer to reckless conduct as constituting the conduct that produces liability for what the court has traditionally called willful, wanton, or reckless conduct." Sandler v. Commonwealth, 419 Mass. at 335, 644 N.E. 2d at 643.

² Without moralizing, this Court may take judicial notice of the fact of competition among publishers seeking access to "inside" accounts by participants in widely - publicized and controversial homicide trials. For example, the following lists only some of the published books authored (at least in part) by participants in the prosecution of O.J. Simpson: Baker, Terry (with Kenneth Ross & Mary Jane Ross) I'm Not Dancing Anymore: O.J Simpson's Niece Breaks the Silence (1997) New York: Kensington; Barbieri, Paula The Other Woman: My Years With O.J Simpson. A Story of Love, Trust, and Betrayal (1997) New York: Little, Brown & Co.; Berry, Barbara Cochran (with Joanne Parrent) Life After Johnnie Cochran: Why I Left the Sweetest-Talking Most Successful Black Lawyer in L.A. (1995) New York: Basic Books; Brown, Denise Nicole's Story (1997) New York: Harper Collins [expected October, 1997]; Clark, Marcia (with Teresa Carpenter) Without a Doubt (1997) New York: Viking Penguin; Cochran, Johnnie L. (with Tim Rutten) Journey to Justice (1996) New York: Ballantine Books; Cooley, Armanda, Bess, Carrie, & Rubin- Jackson, Marsha (as told to Tom Byrnes with Mike Walker) Madam Foreman: A Rush to Judgment? (1995) Beverly Hills, C.A. Dove Books; Darden, Christopher (with Jess Walter) In Contempt (1996) New York: ReganBooks; Dershowitz, Alan M. Reasonable Doubts: The O.J Simpson Case and the Criminal Justice System (1996) New York: Simon & Schuster; Eliot, Marc Kato Kaelin: The Whole Truth. The Real Story of O.J, Nicole, and Kato, From the Actual Tape (1995) New York: Harper Paperbacks; Fuhrman, Mark Murder in Brentwood (1997) Washington, D.C.: Regnery Pub.; Goldberg, Hank M. The Prosecution Responds: An O.J Simpson Trial Prosecutor Reveals What Really Happened (1996) Secaucus, NJ: Birch Lane Press; Goldman, The Family of Ron (with William and Marily Hoffer) His Name is Ron: Our Searchfor Justice (I 997) New York: William Morrow & Co.; Kennedy, Tracy, & Kennedy, Judith (with Alan Abrahamson) Mistrial of the Century: A Private Diary of the Jury System on TriaL (1995) Beverly Hills, CA: Dove Books; Knox, Michael (with Mike Walker) The Private Diary of an O.J. Juror: Behind the Scenes of the Trial of the Century (1995) Beverly Hills, CA: Dove Books; Lange, Tom, & Vannatter, Phillip (as told to Dan E. Moldea) Evidence Dismissed. The Inside Story of the Police Investigation of O.J Simpson (I 997) New York: Pocket Books; Persaud, Tara (with Lewis Smith) O.J Simpson Murder Case: The Story ofthe Mystery Woman (1997) Shippensburg, PA: Destiny Image Pub.; Resnick, Faye D. (with Mike Walker) Nicole Brown Simpson: The Private Diary ofa Life Interrupted (1994) Beverly Hills, CA: Dove Books; Resnick, Faye D. (with Jeanne V. Bell) Shattered.- In the Eye of the Storm (1996) Beverly Hills, CA: Dove Books; Shapiro, Robert L. (with Warren Larkin) The Searchfor Justice: A Defense Attorney's Brief on the O.J Simpson Case (1996) New York: Warner Books; Simpson, O.J. (with Lawrence Schiller) I Want To Tell You: My response to Your Letters, Your Messages, Your Questions (1995) New York: Warner Books; Thomas, Marguerite Simpson Life With O.J.(1996) Avenal: Random House; Uelman, Gerald F. Lessons from the Trial: The People v. O.J. Simpson (1996) Kansas City, MO: Andrews and McMeel.