UNIVERSITY OF KENTUCKY
COLLEGE OF LAW
SPRING 1992

Examination No.

CIVIL PROCEDURE II (817-01) Professor Harding
May 1, 1992 Room 110

FINAL EXAMINATION
INSTRUCTIONS - READ CAREFULLY

1. This is an open book examination. You are allowed to bring
and use your Federal Rules of Civil Procedure and your Civil
Procedure casebook. However, your Rules book and case book must
not contain any tabs or outlines. You may, however, have
underlined or highliqhted words or passages. If this rule is
violated, you will not be permitted to finish the final
examination and will receive an "E" for the course.

2. You may not use commercial or personal course outlines.
Violation of this rule subjects you to the sanction mentioned
above in Rule 1.

3. You have three (3) hours to complete the examination. The
final examination is worth 300 points.

4. The final examination has three questions. The first
question is worth one hundred (100) points and you should spend
approximately sixty (60) minutes formulating and writing your
answer. The second question is worth one hundred (100) points
and you should spend approximately sixty (60) minutes formulating
and writing your answer. The third, and last question, is worth
one hundred (100) points and you should spend approximately sixty
(60) minutes formulating and writing your answers.

5. You must write your examination number on the front of the
examination sheet and on the front of each blue book that you
use.

6. If you use more than one blue book, please mark the first
blue book "1 of 3", the second one "2 of 3", and so on.

7. Write only in pen.

8. Write all your answers in your blue books. Please write on
every other line of each page of your blue book.

YOU MAY TURN THE PAGE TO CONTINUE READING THE INSTRUCTIONS.

9. Please write only on one side of the blue book page.

10. Write your answers clearly and thoughtfully. If you believe
you need to make an assumption, then clearly note what you are
assuming. If you are making a reasonable factual inference from
a given fact, clearly state that inferred fact and how you
reasonably inferred the fact.

11. Answer only the question(s) asked; points will be deducted
for irrelevant discussion.

12. I will periodically write the time remaining on the
blackboard. In addition, I will verbally advise you when there
are fifteen (15) minutes remaining and when there are five (5)
minutes remaining.

13. After three hours have passed, I will call time and all
students must stop writinq. 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.

14. After you hand in your blue books do not ask me any
questionings pertaining to the final exam.

15. I will be in the classroom during the examination. If you
have any questions, please come and ask me.

GOOD LUCK!
DO NOT TURN THIS PAGE OR BEGIN THE EXAMINATION UNTIL
YOU ARE TOLD TO BEGIN

QUESTION ONE
[One hour/60 minutes]

You are a fourth year associate with the firm of Bartlett &
Anjou in Lexington, Kentucky. You have a lot of experience under
your belt; particularly in the area of class actions.

Recently, the Federal Food and Drug Administration ("FDA")
has been making headlines because it has issued a regulation
prohibiting the use of silicone breast implants. Apparently,
there were some undisclosed dangers associated with silicone
implants that the major manufacturers, James & Brown Co., Carly &
Simon Co., and Jethro & Tull Co., did not reveal to the FDA when
they sought permission to market silicone breast implants. As a
"hot shot" class action attorney, you have been carefully
following the development of this event.

The wife of one of the firm's partners had silicone breast
implants two years ago following a radical masectomy. She has
been having medical problems ever since she had the implant
surgery. You also know that the University of Kentucky's Medical
Center has a world renowned Plastic and Reconstructive Surgery
Unit ("Unit"). They have been using silicone breast implants for
at least eight years. Some of the former patients at the Unit
requested implants for cosmetic purposes; while others sought
them for breast reconstruction after having a radical mastectomy.
Some of the patients at the Unit have had their implants since
the Unit started doing the procedure eight years ago. Other
patients had the implant surgery as recently as two weeks ago.

The Unit purchases silicone breast implants from all three
of the above named manufacturers.

As of today, not all the recipients of silicone breast
implants are experiencing or have experienced problems as a
result of the implants. Others (like the partner's wife),
however, have had numerous medical problems after having the
implant surgery.

The partner comes to your office and explains his wife's
situation. Given that there were many others who had breast
implant surgery at the University of Kentucky's Plastic and
Reconstructive Surgery Unit, he wants you to look into the
possibility of whether or not a class action can be filed to seek
redress for his wife and those similarly situated.

Assume the following:

(1) it is preferred that if the action can proceed as a
class action, then the action be brought in federal
court;

(2) the plaintiff class would file state law claims;

(3) the state law claims would onlv be filed against the
three manufacturers of the breast implants: James &
Brown Co., Carly & Simon Co., and Jethro & Tull Co.;

(4) the class representative(s) are domiciled in Kentucky;

(5) the three manufacturers are all incorporated in
Delaware;

(6) James & Brown Company's principal place of business is
in New York;

(7) Carly & Simon Company's principal place of business is
in California;

(8) Jethro & Tull Company's principal place of business is
in Ohio; and

(9) Kentucky can exercise personal jurisdiction over all
three breast implant manufacturers.

Analyze and determine whether this action can be certified
under the Federal Rules of Civil Procedure as a class action.
What is your opinion?

This question is worth one-hundred (100) points.

QUESTION TWO
[One hour/60 minutes]

Carefully reread the facts in Question 1. REGARDLESS of the
conclusion you reached in your response to Question 1 regarding
class certification, assume that your request, that the action be
certified as a class, was denied. THEREFORE, A JUDICIAL ORDER
PROHIBITS THE ACTION FROM PROCEEDING AS A CLASS ACTION.
FURTHERMORE, THE DISTRICT COURT'S ORDER PROHIBITING THE
CERTIFICATION OF THIS ACTION AS A CLASS CANNOT BE APPEALED AT
THIS TIME.

The partner still wants to proceed with the matter/action.
His wife certainly wants redress, as probably do the other
similarly situated individuals. Therefore, your next task is to
determine if there are any alternative(s) available so that the
action can proceed. Thoroughly discuss the alternative(s). In
your conclusion, state what you think is the most prudent course
of action to follow at this juncture.

This question is worth one hundred (100) points.

QUESTION THREE
[One hour/60 minutes]

There are fourteen questions listed below. After reading
all the questions, select five (5) questions to answer. The
points you receive for each response will reflect your
identification and understanding of the issues presented by the
question posed. In addition, points will be awarded for
organization, structure, transition and persuasiveness. Each
response to a question is worth twenty (20) points.

Question Three is worth a total of 100 points.

1. Describe the difference, if any, between Rule 24 and
Rule 20(a). In addition, describe the situations in
which you would opt to use one method instead of the
other.

2. Explain your position regarding the scope of discovery
as to experts. Is the current scope sufficient? Is
it too broad? Is it too narrow?

3. Describe, in detail, how the notice pleading system
and the discovery system interact and complement
each other.

4. At present, the rule in a class action based on section
1332 is that the diversity of citizenship requirement
is determined by the domicile of the class
representative. Given the Supreme Court's recent
decisions in Ferens and Finley, do you think that this
rule would survive if reviewed by the present Supreme
Court? Give reasons supporting your opinion.

5. Is the present scope of discovery too broad? Too
narrow? Sufficient? Explain and support your
conclusion.

6. Do class actions infringe upon the adversary system
which is a critical component of the American judicial
system? If so, explain how. If not, explain how they
do not.

7. Given that liability insurance is discoverable, does it
make sense to continue to prohibit the discovery of
financial status information? Give reasons for the
position you endorse.

8. Do you agree with the current law defining the proper
scope of claims that may be asserted by a
defendant/third-party plaintiff against a third-party
defendant under Rule 14?

9. Give your view on how Rule 54(c) and Rule 8(a)(3)
should interact.

10. What changes, if any, would you make to the Federal
discovery rules? If none, explain why changes are
not necessary. If you believe changes are necessary,
please provide examples of necessary changes and give
reasons supporting the changes you advocate.

11. What are your thoughts about the usefulness of
class actions, given the present scheme under which
they operate?

12. Should the present manner by which a court determines
the amount in controversy requirement in a class
action, based on section 1332, be altered? If so,
why? If not, why not?

13. Do you agree or disagree with the two-tiered work
product rule in Rule 26(b)(3)? State reasons to
support your position.

14. Given Rules 1 and 2, should whether the action is at
law or in equity continue to play any role in
determining the right to a trial by jury? State your
position and provide reasons supporting your position.