Plaintiff  ) Civil Action No. CA 98-30204 FHF
v.      )
 et al.    )

Plaintiff hereby certifies that on December 29, 1998 at 1:05 pm she
conferred by phone as required by Local Rule 7.1 with defendant^“s
counsel Gretchen Brodnicki prior to filing this Motion for More
Definitive Statement.  Parties were unable to reach consensus to resolve
or narrow issues. Plaintiff suggested that Harrington Hospital and Mr.
Mangion now assist her in encouraging UNUM Insurance Company to honor
its obligations, as she had requested from them many times before
instituting this litigation.  Harrington/Mangion continue to insist that
they have no responsibility to assist plaintiff in forcing UNUM to honor
its obligations and continue to insist that they have engaged in no
deceits.  The purpose of this motion is to set forth
Harrington/Mangion^“s obligations and the deceits they engaged in which
explicitly or implicitly amount to conspiring with UNUM for purposes of
racketeering and depriving plaintiff of benefits she is rightfully owed.

Aside: Prior to the filing of this motion, Mr. Pierce did indeed attempt
to contact Plaintiff.  He called and left a message on Plaintiff^“s
answering machine 5 days before he filed the motion but over 6 weeks
after he received notice of the complaint. Plaintiff did inform Mr.
Pierce that she was suffering a relapse and submits pages from her
symptom diary which she keeps to prove her case to the court and to
UNUM. Attachment A. She did call him as soon as she was feeling up to
it, but he had already filed this motion. Attachment B ^÷ Letter to Mr.
Pierce summing up his lack of attempts to confer in good faith with

       Judy Morris, MD
       PRO SE
       261 Bumstead Rd.
       Monson, MA  01057
       (413) 267-3606


   Plaintiff  ) Civil Action No. CA 98-30204 FHF
v.      )
 et al.    )


I, Judy E. Morris, MD, being a citizen of the Commonwealth of
Massachusetts, under pains and penalties of perjury do hereby
strongly oppose the motion put forth to dismiss the above complaint
pursuant to Fed. R. Civ. P, Rule 12(b)(6) and other arguments, filed by
Attorney Robert R. Pierce, counsel for Harrington Memorial Hospital,
Inc. and Mr. Richard Mangion.
  1. Plaintiff restates and incorporates as if set here in full
arguments opposing Motions to Dismiss submitted by attorneys
representing Betty Rae Poppo, ^”UNUM,^‘ Robert Crispin, the Massachusetts
Insurance Fraud Bureau and Michael Gray that have been previously or
simultaneously filed with the courts and all attorneys including those
with regards to Fed. Rule Civ. P. 12(b)(6). ^”A court should dismiss a
suit under FRCP 12(b)(6) only if ^—it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.^‘ Conley v. Gibson, 355 U.S. 41,45-46, 78 S. Ct.
99, 102 (1957).  Plaintiff also restates and incorporates the previously
submitted Statement of Claim, Entitlement to Relief and RICO Statement.
  2. As seems to be the theme of this litigation and in fact for most of
her interactions with Harrington and Mr. Mangion, counsel have in their
Motion to Dismiss presented to the court a set of biased and incomplete
facts and cast unwarranted aspersions on the plaintiff by implying that
since plaintiff claims to have not known about the mental illness
limitations in the UNUM policy that ^”This further implies that she knew
at the outset of her employment with Harrington that she would be taking
advantage of the mental health disability benefits offered by the
Policy.^‘ Harrington Memorandum P. 9.  This comment is ludicrous and
totally uncalled for, especially considering counsel and Harrington^“s
previous assertions that when they purchased this policy of insurance
from UNUM that ^”Harrington did not request any limit or exception for
benefits to individuals suffering from mental illnesses.^‘ Richard Aff.
Paragraph 3, Harrington Memorandum Page 2.  Harrington Hospital claims
to have had this insurance policy since 1993.  How can they claim they
did not request a limitation that is in their own policy that they offer
and pay for as a benefit to employees and yet expect the plaintiff, at a
time when she did not have any expectation of being disabled by mental
illness or anything else to have known this. It is common knowledge that
most employees, even if they did read the benefits booklets at the
initiation of employment certainly don^“t understand their implications
at a time when they are working and not disabled. For Harrington^“s
counsel to make this assumption is an attempt to unjustly impugn
plaintiff^“s character in the eyes of the Court and is certainly negated
by their own comment that they didn^“t know about the mental illness
  However, Plaintiff has reason to believe a previous UNUM
claimant/employee from Harrington Hospital was wrongfully diagnosed with
Mental Illness by UNUM when she indeed had Chronic Fatigue Syndrome,
thereby limiting both UNUM^“s and Harrington^“s benefits payout as well as
limiting premium increases.  This implies a Fraudulent Intent on
Harrington^“s part for the mental illness limitation as per S.Q.K.F.C.,
Inc v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 634 (2nd Cir.
1996).  But without the ability to conduct discovery, plaintiff has been
unable to ascertain the name of this individual or the details of her
case. Also note that ^”[T] normally rigorous particularity rule has been
relaxed somewhat where the factual information is peculiarly within the
defendant^“s knowledge or control.^‘ Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1418(3d. Cir. 1997).
 3. As stated in her complaint and in previous Oppositions to Motions to
Dismiss, plaintiff was originally diagnosed with Chronic Fatigue
Syndrome and Fibromyalgia by her internist in April and October 1995 and
confirmed by neurologist Paula Ravin, MD on May 1, 1996. Attachments C
and D.  Had it been plaintiff^“s intention to quit work and ^”cash in^‘ on
her disability benefits, she could have done so at this time.
  4.  Instead plaintiff continued to work, continuing to get sicker and
the ER continued to get busier.  In prior discussions, Plaintiff^“s
superior, Dr. Matolscy, had made it clear that he would not consider any
more part-time staff ER doctors and so Plaintiff did not feel he would
grant her a part-time position.  However, Plaintiff did feel that extra
help would help alleviate her distress and did write several letters and
have personal discussions with Mr. Mangion and Dr. Matolscy, and the
subject was brought up repeatedly at the monthly staff meetings about
getting in back-up physicians to deal with busy periods. In one brief
discussion with Dr. Matolscy on or about the first week of October,
1996, Dr. Morris remembers requesting two weeks off starting immediately
because she was feeling so weak and tired.  Dr. Matolscy replied that
she couldn^“t have it that month, maybe in November.  To which Dr. Morris
replied ^”I don^“t think I can make it that long.^‘  Dr. Matolscy was busy
writing a patient^“s chart and ignored the comment. Note: In the year and
a half Dr. Morris had worked at Harrington, there was only one time she
called in sick. See the following attachments.
Attachment E: Example of one of several letters plaintiff wrote to Mr.
Mangion about the working conditions and need for relief.
Attachment F: Example of letter written by another ER doctor confirming
Dr. Morris^“ concerns.
Attachment G: Schedule showing that the ER was so busy that extra
doctors were frequently called in to assist...when they could be found.
Attachment H: Mr. Mangion^“s response to Plaintiff^“s request for relief
which can be summed up by the phrase ^”If you don^“t like it here, you can
leave.^‘ (Page 7 of Mangion letter)
  On October 10, 1997, plaintiff visited her doctor and expressed the
thought that she could no longer handle the work requirements of an ER
doctor.  Neither plaintiff nor her doctor realized exactly how sick and
tenuous plaintiff^“s condition was at that point, and so Dr. McIlvaine
agreed with Plaintiff^“s decision to continue to work until her contract
was up, since plaintiff felt an obligation to finish out her contract
and not leave Harrington in the lurch. Attachment I.
  Unfortunately Plaintiff^“s condition continued to deteriorate, in fact
leading to emotional outbursts while on duty,(one of which was directly
witnessed by Mr. Mangion), memory and speech problems, word finding
difficulty, clumsiness, forgetfulness, extreme drowsiness and
exhaustion, dizziness, palpitations, nausea and other symptoms of severe
Chronic Fatigue Syndrome and eventually a suicidal crisis precipitated
by notification of a malpractice suit against her.
  4. Circumstances surrounding Dr. Morris^“s ^”voluntary^‘ letter of
resignation. Shortly before February 20, 1997, Charlene Richard
requested for Plaintiff to call her.  The purpose of the phone call was
for Ms. Richard to ask plaintiff to submit her resignation.  When Dr.
Morris asked if she had to submit a resignation, since she did not know
if this would have negative implications down the line, Ms. Richards
told her it would make it easier for Harrington Hospital to hire a
replacement for her if she were to voluntarily resign.  Since Dr. Morris
knew she could not and had been advised by her doctor, Attachment J, not
to return to this position and had no wish to further complicate
Harrington^“s staffing problems, she submitted her resignation.  In this
way, Harrington and Ms. Richard deceitfully took advantage of
plaintiff^“s helpful nature, violating the fiduciary duties described in
Varity Corp. v. Howe, 516 U.S. 489 (1996) finding that a company that
acted as a fiduciary and deceived plan participants about their benefits
had breached fiduciary duties and were liable under ß502(a)(3)ERISA.
Having deceitfully deprived her of legal rights Harrington is now using
Plaintiff^“s resignation to avoid their fiduciary responsibilities to
her.  At this time plaintiff did not know whether her disability
application had been accepted or rejected by UNUM.  She did not receive
word of UNUM^“s decision until April, 1997.  This phone call constitutes
Wire Fraud and Mail Fraud in an attempt to induce plaintiff to
relinquish rights.  Furthermore, since plaintiff was no longer on the
books of defendant^“s hospital as an employee, there was no incentive for
them to assist plaintiff in getting her disability benefits paid.  These
facts were known to Harrington at the time and not revealed to plaintiff
or she would not have voluntarily resigned. Plaintiff was also not
informed of the laws that protect employers such as those cited in this
Motion to Dismiss, ERISA and the Massachusetts Workers^“ Compensation
Act, which according to Attorney Pierce gives employers immunity to
engage in intentional and negligent acts or infliction of emotional
distress, even when these acts are ^”extreme and outrageous.^‘  Page 13 of
Harrington Memorandum.  In fact had plaintiff known then, or been
informed then, by management or Human Resources, that her employer^“s
attitude was to promise, by contract, certain working conditions and
benefits and then use legal technicalities to avoid their contractual
duties, Plaintiff certainly would not have accepted employment at
Harrington Memorial Hospital.  Furthermore any reference to Workmans^“
Compensation laws are irrelevant and should be stricken as plaintiff has
not made any Workmans^“ Compensation claims.
  5.  Ms. Richard^“s and Harrington^“s contentions that they ^”assisted Dr.
Morris is the pursuit of her claim^‘ are laughable.
Filling in a few forms and expressing some platitudes to the plaintiff
is hardly offering the type of assistance plaintiff needed or
requested.  Plaintiff went to Mr. Mangion in good faith and told him
what UNUM was doing in the Spring of 1997 and his only response was to
tell her that Harrington had a new insurance carrier anyway.  Plaintiff
wrote letters to Charlene Richards asking for help. (Mr. Jack Taylor,
the hospital^“s insurance agent did responded  by writing one letter to
UNUM. Attachment K)  Ms. Richards, however, did not submit any letters
or evidence to UNUM in support of plaintiff^“s disability application
except the misleading document that plaintiff had not requested
part-time work, hardly an accurate statement considering that Dr. Morris
made great efforts to request Harrington and Mr. Mangion do something to
alleviate her stress as discussed above. Attachment L.
  6. At the suggestion of the hospital^“s insurance agent Mr. Taylor,
Attachment M, plaintiff went to Harrington Hospital the last week of
July 1997 to see if she could get affidavits from her co-workers to
bolster her case.  Because only a few nurses work on each shift, she
typed up a letter and left it for the other shifts, Attachment N.  The
response from Harrington Hospital and Mr. Mangion was for their
attorney, Mr. Pierce, to write Plaintiff a letter advising her that
since she had filed a complaint with the EEOC, she wasn^“t allowed to
talk to any of her co-workers about this and would have to go through
the attorney. Neither Mr. Pierce nor Harrington nor Mr. Mangion made any
further efforts to help plaintiff obtain affidavits from her coworkers.
(This letter is unavailable at the present time, but Mr. Pierce should
certainly have a copy since he wrote it.) In this way Harrington
Hospital was obstructing Dr. Morris in her attempts to get justice,
intimidating witnesses not to talk to her, and alienating her from her
ex-colleagues.  In one more attempt to get Harrington Hospital to
fulfill their contractual and fiduciary obligations to plaintiff, she
wrote the following letters to Attorney Pierce.  Attachment O.  His
response, essentially refusing to help and advising Dr. Morris to get an
attorney, in addition to all the facts stated above would certainly lead
any reasonable person to conclude that Harrington Hospital must have
some ulterior motive for not assisting plaintiff in her attempt to get
disability benefits especially since Mr. Pierce asserts that Harrington
does consider plaintiff to be ^”totally disabled.^‘ Harrington Memorandum,
page 6.  Furthermore plaintiff is aware of other UNUM claimants for whom
an adverse claims decision was reversed when their employers got
involved.  Plaintiff believes there will be discoverable information
confirming that Harrington^“s Human Resources Department and Mr. Mangion
did conspire with UNUM and there was some benefit to them in plaintiff^“s
continued denial of benefits by UNUM.
   7.  Plaintiff filed an EEOC complaint against Harrington Hospital
because she had been told that in order to file a complaint against
UNUM, she had to also include her employer. What Mr. Pierce failed to
include in his memorandum is a copy of the EEOC^“s decision that
plaintiff^“s complaints of  discrimination are valid against both
Harrington and UNUM. Attachment P.  However since plaintiff has not
actually sued Harrington for discrimination, any reference the ADA or
EEOC are not relevant to this Motion and should be stricken.  Plaintiff
does however contend now that Harrington Hospital would have made a real
effort to assist her much more had she had a more ^”traditional^‘
disability instead of Chronic Fatigue Syndrome.
As Judge Spencer Letts said in his opinion in Case No. 96-0015 JSL,
Dishman v. UNUM, US District Court for the Central District of
California (Attachment G of Previously submitted Opposition to Motion to
Dismiss Complaint against UNUM/Crispin, page 12.) ^”Insurance companies
do not have the same practical incentives as employers to administer
benefit plans in good faith . . . employers are motivated to act in good
faith not only in order to comply with the law, but by the practical
considerations of maintaining employee loyalty and morals. . .Deflecting
the blame for bad faith denials on insurance companies, effectively
allows employers the benefit of unscrupulous practices (lower plan
costs) while avoiding the price of such practices (corrosion of employee
morale and loyalty)^‘.  It would defeat the reasonable expectations of
employees if employers, who have control over these issues, are
basically able to offer a ^”benefit^‘ which in reality is no more than a
useless piece of paper, and then abrogate responsibility. This would
lead employers to contract for cut-rate benefits packages with
disreputable companies in the interests of saving money for the
employer^“s corporation and reaping tax benefits and good will; meanwhile
the entire meaning of a ^”benefit^‘ becomes meaningless.  An insurance
contract means nothing if policyholders have no reasonable way of
ensuring that the stipulations in the contract are enforced and makes
the employers accessories to racketeering even if there were no other
  8.  Plaintiff believes that by the above stated facts she has
certainly complied with the stipulations of RICO 18 U.S.C. ß1961-1968
with particularity both Predicate Acts of Mail/Wire Fraud and
Obstruction of Justice as well as asserting that Harrington and Mr.
Mangion by their role as accessories were in fact benefiting and acting
as co-conspirators in UNUM^“s racketeering schemes and were part of an
association in fact.  There is certainly more than enough to defeat
their Motion to Dismiss and allow plaintiff to conduct discovery into
these issues of how much Harrington knew or should have known, did or
should have done, to both fulfill their fiduciary duties, ERISA USC
1104, Varity Corp. v Howe, 516 U.S. 489(1996) and to assist claimant
after she made them aware of the grievous injustices being perpetrated
by UNUM on their claimants.
   12.  Plaintiff has indeed stated a claim for relief, in fact it is
entitled Prayer for Relief and can be viewed in Paragraph 119, page 282
of the Complaint.  All defendants are jointly and severally liable for
the damages demanded by virtue of their part in the ongoing conspiracy
of selling or offering fraudulent insurance policies and/or failing to
act within their occupational, contractual and fiduciary duties to
plaintiff and the public when the fraud is discovered and reported to
them in good faith by the victim.
  A. Matters related to discrimination and ADA are not part of this
lawsuit and therefore should be stricken.
  B. Breach of Contract:  Plaintiff^“s contract with Harrington says
^”Long Term Disability ^÷ 60% of basic earnings to a maximum benefit of
$8,500 per month payable for total disability to age 65.  Defendants
admits plaintiff is ^”totally disabled.^‘ Page 6 of Harrington
Memorandum.  Plaintiff is not receiving 60% of her basic earnings.
Harrington has therefore breached their contract. Plaintiff agrees that
this defendant has no liability related to plaintiff^“s Individual
Disability Contract with UNUM.
  C. M.G.L. c. 93A might require further study.  Plaintiff asserts that
it would defeat the reasonable expectations of employees if employers
were able to offer ^”benefits^‘ that were unenforceable and that
therefore, employers do have some responsibility for ensuring the
ethical business practices of agencies they deal due to their fiduciary
duties in selecting these companies on behalf of employees.
  D. ERISA Pre-emption: The fiduciary duty of ERISA extends to employers
because of the special nature of the group benefits through the employer
as described above. Although ERISA may pre-empt state punitive damages
as regards the employer and insurers, it certainly does not pre-empt
their responsibility for the basic benefits described in the contract.
And if UNUM refuses to adhere to the contract, the responsibility falls
to the employer who supplied the contract to the employee as a benefit.
Because a fiduciary must act as a ^”prudent man acting in a like
capacity^‘ unless Harrington can produce evidence that payment of
plaintiff^“s benefits would harm other plan participants, they are liable
for the benefits. 29 U.S.C. Sec 1104. Plaintiff never agreed in any way
to make UNUM solely responsible and in fact, assumed, as any reasonable
person would, that her employer would assist her in enforcing the
contract.  In Leyland v Plymouth & Brockton St. Rwy. Co. No. 97-P-1324,
Appeals Court of Mass, Plymouth, March 16, 1998, Judge Spencer Letts
Delvecchio concluded that the employer was liable for life insurance
benefits after it wrongfully informed the insurance company that
plaintiff was canceling his policy, and that due to the deceitful
actions of the employer, the claim against them was not pre-empted by
ERISA.  ^”That a statute whose clear purpose was to benefit employees has
become widely used as a shield to protect employers from any deceptive
and wrongful acts they may have committed against their employees is an
irony we find unacceptable as a governing principle.^‘
  In Inter Modal Rail Employees Assoc. v Atchison, the Supreme Court
ruled that any business decision made by the employer could be
prohibited by the ERISA anti-discrimination provision if its purpose is
to eliminate or reduce benefits.
  The Supreme Court ruled in Varity Corporation v Charles Howe, et al.
No. 94-1471, 116 S. Ct. 1065; 1996 U.S. LEXIS 1954; 134 L. Ed. 2d 130;
64 U.S.L.W. 4138; 96 Daily Journal DAR 3151, March 19, 1996,  that an
employer is a fiduciary when it was exercising ^”discretionary authority^‘
respecting the plan^“s ^”management^‘ or ^”administration^‘ and that that
fiduciary obligation was breached when Varity persuaded employee to
change benefit plans ^”by trickery.^‘  Because breach of fiduciary duty
requires ^”appropriate equitable relief^Ňto redress^‘, ERISA @ 502(a)(3),
Harrington is indeed a fiduciary, did breach it^“s fiduciary duty by not
aiding plaintiff in her disability claim against UNUM in any meaningful
way, and therefore is liable for the benefits wrongfully denied
plaintiff under her group disability contract.  The fact that UNUM^“s
deceptions and fraudulent use of the mental illness limitation may not
have been known to Harrington is a question that can be answered by
examining the disposition of the other Harrington employee(s) disabled
by Chronic Fatigue Syndrome.  The question of whether Harrington
benefited in the form of reduced premiums or other benefits by limiting
or assisting UNUM in limiting benefits is a question that will also
require some form of discovery.  In fact, when plaintiff asked Mr.
Mangion why he had switched plans shortly after her application for
benefits, during a visit when she went to him to request assistance in
1997, he told her that the UNUM plan was getting too expensive. ^”To
participate knowingly and significantly in deceiving a plan^“s
beneficiaries in order to save the employer money at the beneficiaries^“
expense, is not to act ^—solely in the interest of the participants and
beneficiaries^“^‘ Id. ERISA @ 404.  Plaintiff, and reasonable employees,
would assume that the employer was exercising discretionary authority
and would have some input into the claims decisions of UNUM, since the
employer would be in an even better position to know if the claimant was
in fact disabled according to the contract. As the administrator of the
plan, Harrington did give plaintiff a plan booklet, although they did
not in any way try to explain it.  This was given by the Human Resources
Dept. as part of their authority to ^”communicate as fiduciaries^‘
(Varity, Id.) since claimant^“s normally do not communicate with UNUM
until after a claim is filed.  ^”Reasonable employees might not have
distinguished consciously between the two roles [employer and plan
administrator]^‘ and as plaintiff assumed that Harrington had ultimate
responsibility of enforcing the provisions of benefits as stipulated in
her employment contract with Harrington.
   By the above more definite statement plaintiff has clearly alleged
with particularity mail and wire fraud and obstruction of justice,
Predicate Acts under RICO, 18 USC, and given enough information to
implicate Harrington and Mr. Mangion in a conspiracy to deprive
plaintiff through deceit and trickery of her contractual benefits and
this motion for dismissal or summary judgment for Harrington and Mr.
Mangion must be denied.
Mr. Mangion is responsible for the Predicate Acts of the Harrington
Human Resources Department and Obstruction of Justice by Bob Pierce by
respondeat superior.
    as per Local Rule 7.1(D)
  Plaintiff again reiterates her request for oral arguments as set forth
in previous motion and requests a conference with the judge as soon as
  Signed under the penalties of perjury this 6th day of January, 1999.

Judy E. Morris, MD
       PRO SE
       261 Bumstead Rd.
       Monson, MA  01057
       (413) 267-3606

    I hereby certify that a true copy of the above document was
delivered in person January 6th, 1999 to US District Court, District of
Massachusetts, Springfield and served by United States Postal Mail,
postage prepaid upon the following attorneys representing all defendants
in Morris v. UNUM, et al. Mailed on January 6th, 1999.

       Judy E. Morris, MD
       PRO SE
       261 Bumstead Rd.
       Monson, MA  01057
       (413) 267-3606

Patricia A. Peard, Esq.    representing ^”UNUM^‘ claimants
Bernstein, Shur, Sawyer
& Nelson, PA
100 Middle Street, PO Box 9729
Portland, ME  04104-5209

Katherine A. Robertson, Esq.   ^”UNUM^“s^‘ local counsel
Buckley, Richardson & Gelinas
1500 Main Street
PO box 15507
Springfield, MA  01115

William J. Kayatta, Esq.   representing Robert Crispin
Geraldine G. Sanchez, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101

H. Gregory Williams    representing State of Mass.,
Assistant AG     Harshbarger, Melconian, DOI,
Office of Attorney General  Ruthardt, Goetz, Marcinkus,
Western Mass. Division   Marquez
436 Dwight Street
Springfield, MA 01103-1317

Tracy L. Devlin, Esq.   representing IFB and Michael
E. Michael Sloman, Esq.    Gray
Meyer, Connolly, Sloman
& MacDonald, LLP
12 Post Office Square
Boston, MA  02109

Thomas H. Hayman, Esq.   representing Betty Rae Poppo
Cetrulo & Capone, LLP
53 State Street
Exchange Place
Boston, MA  02109

Robert Pierce, Esq.
Gretchen A. Brodnicki, Esq.  representing Harrington and
Pierce & Mandell, PC   Mangion
11 Beacon Street, Suite 800
Boston, MA  02108-3002

Christopher N. Jones   Co-Counsel for Transunion
Marion, Satzberg, Trichon,   Credit Corporation with Pat
Kogan & Wertheimer, PC   Peard
3000 Mellon Bank Center
1735 Market Street
Philadelphia, PA  19103-7640

Carolyn G. Sullivan    representing Jack Taylor
Melick & Porter, LLP
28 State Street
Boston, Massachusetts  02109

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Created: January 6, 1999
Last Updated: May 28, 2000