COLLEGE OF LAW
SPRING 1994
Professor Harding
April 29,1994
FINAL EXAMINATION
INSTRUCTIONS - READ CAREFULLY
1. This is a closed book examination. You are only allowed to use your Federal Rules of Civil Procedure. Your Rules Book must not contain any tabs, annotations, outlines, or other written material. You may, however, have underlined or highlighted words or passages. In addition, you may place tabs from pages 401 to 500 to mark the recent amendments to the Federal Rules of Civil Procedure. If any of these rules are violated, you will not be permitted to finish the final examination and you will receive an "E" for the course.
2. You may not use commercial or personal course outlines during the examination. Violation of this rule subjects you to the penalty mentioned in Rule 1 above.
3. You have three (3) hours to complete the examination. The final examination is worth a total of three hundred (300) points. The first question is worth one-hundred and fifty (150) points. The second question is worth one hundred (100) points and the third, and final, question is worth fifty (50) points.
4. You must write your examination number on the front of this examination sheet and on the front of each blue book you use.
5. If you use more than one blue book, then mark the first blue book "l of 3", the second one "2 of 3", and so on.
6. Write in pen.
7. Write all of your answers in your blue books. Please write on every other line of each page.
8. Write only on one side of the paper.
9. Write your answers clearly and thoughtfully. If you believe you need to make an assumption, then clearly note what it is you are assuming. If you make a reasonable factual inference from a given fact, clearly state the inferred fact and how you reasonably inferred the fact.
10. Answer only the question(s) asked. You will not receive points for irrelevant responses.
11. I will periodically write the time remaining on the board. In addition, I will verbally advise you when there are fifteen (1 5) minutes remaining and when there are five (5) minutes remaining.
12. After three hours have passed, I will call time and all students.must stop writing. Please place your pen on top of your blue books so that I can verify that everyone has stopped writing. If you do not follow this instruction, I will confiscate your blue book(s) and you will receive an "E" for the course.
13. If you have any questions during the examination, come and ask me. I will either be in the classroom or in my office (Room 255).
14. After you hand in your blue books do not ask me any questions regarding the final exam.
15. You are required to adhere to the College of Law's Honor Code.
GOOD LUCK!
This question is worth one hundred fifty (150) points. Be sure to allocate your time properly and to be thorough in your identification, discussion, and analysis of the issues. (Approximately 1-1/2 hours).
As you know, the news recently reported that many individuals who had silicone breast implants are experiencing a variety of types of trauma. Some of the individuals are bed-ridden and can no longer pursue their livelihood, others have contracted cancer, others experience incredible pain, others have incredible migraines, and some have not yet had any problems.
You know a good thing when you see it. You want to bring a class action against DNA Company, the primary U.S. manufacturer of silicone implants. DNA Company is incorporated in Delaware and is headquarter in New York. The bulk of the silicone implants are manufactured in West Virginia. DNA is the largest manufacturer of silicone implants in the United States and aggressively markets its product in hospitals and physicians' offices throughout the nation.
Your law firm is willing to let you take on the case, but your partner insists that you hire an attorney who is an expert at mass tort class actions. The only person available is someone you find to be rather unpleasant; although, for the sake of the case, you think you will be able to maintain a professional demeanor.
You know that one of your neighbors, an artist's model who moved to Lexington, Kentucky from West Virginia several years ago, had silicone breast implants a few years ago. You approach her about being the class representative. She is a bit hesitant because she doesn't want all that publicity. You also are slightly concerned by the fact that so far she has only suffered mild discomfort from the implants. Your neighbor, however, tells you about another artist's model who lives in Lexington, Kentucky who is having problems from the implants. You go to meet with her. She has severe medical problems that appear to have been caused by the silicone implants.
You are ready to proceed and file a complaint against DNA for negligence and products liability and want to include a request that the court certify the action as a class action. Your partner, however, wants you to first prepare a memo explaining why you believe it is feasible that this case can be certified as a class action. Be sure to inform your partner about any problems that might be encountered during the certification process.
Also, not only do you feel that damages are appropriate for the class members, but you also feel that DNA should be prohibited from continuing to market their silicone implants because they present a continuing danger to consumers.
This question is worth one hundred (100) points. Be thorough in your analysis. [Approximately one hour].
Assume that your partner agrees to let you file a request that the action be certified as a class action. The judge, however, denies your motion for certification of a class. What other options are available in order to proceed with the adjudication of the problems stemming from the manufacturering of the silicone breast implants? Which of the option(s) do you believe to be the best alternative to proceeding as a class action? Assume you will not encounter any subject or personal jurisdiction problems.
This question is worth fifty (50) points. The focus is on your ability to critically analyze an issue. Select one question to answer.[Approximately thirty (30) minutes].
1. Given the difficulties in determining when a litigant has a right to a trial by jury and given the merger of law and equity, should the civil jury system be abolished? If so, why? If not, why? Support your position.
2. Are the present parameters of notice pleading too liberal, too strict, etc? Discuss.
3. Assume that the case described in question one was certified as a class action, how would you design your discovery plan?
4. Should courts use devices such as Rule 12(c), Rule 12(b)(6), Rule 56, and Rule 50 more often? If so, why? If not, why?
5. The amended discovery rules have two provisions for sanctioning discovery abuses. Is this really necessary? Would one be sufficient? Why? Why not? Can you think of a better way to sanction discovery abuses?
6. What impact, if any, do you believe the mandatory discovery provision in Rule 26(a)(1) will have on the litigation process? Discuss.
7. Describe in detail how the notice pleading system and the discovery system synergistically interact.
8. Do you agree or disagree with the two-tiered work product rule in Rule 26(b)(3)? State the reasons for your position.
9. Discuss how the typicality requirement in Rule 23(a)(3) can impact the approval of the class representative and the certification of the class.
10. You select a topic to write about. Be sure and provide me with your question.
HAVE A GREAT SUMMER!