Legal Process

Professor Rhonda Wasserman

Exam from Fall 2006

LEGAL PROCESS
SECTION B1

                          Final Examination                                                                                                                                         Three and ½ Hours
                          December 18, 2006                                                                                                                                     1:00 p.m.-4:30 p.m.

THIS EXAMINATION MUST BE RETURNED TO THE PROCTOR WITH YOUR SCANTRON ANSWER SHEET AND BLUEBOOK(S)

This is an open-book exam. The exam consists of ten (10) multiple choice questions and one (1) essay question with two (2) sub-parts. Suggested time limits, which reflect the relative weight of each sub-part or group of questions, in the case of the multiple choice questions, are indicated at the beginning of each sub-part or group of questions. Although the exam is three and one half hours long, the suggested time limits total three hours. You should use the remaining half hour to read through the essay portion of the exam before you start writing. You should apportion your time carefully.

This exam has fifteen (15) pages. If you do not have all fifteen pages, please inform the proctor immediately.

Please write your exam number in the space provided in the upper right-hand corner of each page of the exam and be sure to return the exam to the proctor at the conclusion of the exam. Please be sure to include your exam number in the appropriate space on the Scantron answer sheet for the multiple choice questions and on the cover of each blue book that you use to answer the essay questions. Do not include your name. If you use more than one blue book, please number your blue books (e.g., "1 of 3," "2 of 3," and "3 of 3"). When answering the essay questions, please write legibly and on every other line and on only one side of each page.

When answering the multiple choice questions on the Scantron answer sheet, please use a No. 2 pencil to facilitate the machine-grading of your answers. Each of the multiple choice questions will be weighted equally. Except where otherwise expressly provided, the facts of each multiple choice question stand on their own.

When answering the essay question, please raise, discuss, and decide all issues presented, whether or not they are dispositive, and whether or not your resolution of one issue in a problem makes discussion of other issues in the same problem technically unnecessary. If you need to assume additional facts, please state what those facts are and how they affect your analysis.

If a rule of procedure, statute, or constitutional provision is relevant, you should refer to it specifically. You are encouraged to refer to other relevant authority, including cases. You should explain fully the relevance of all authority cited. Unless otherwise indicated in the exam question, all references to a "Rule" or the "Rules" are to the Federal Rules of Civil Procedure.

Best of luck, and enjoy the holidays!

MULTIPLE CHOICE QUESTIONS
Suggested Time: 60 minutes (6 minutes per question)

[the multiple choice questions have been omitted from the web]

ESSAY QUESTION

Just as surely as autumn follows summer, Harold and Maude and their three sons travel from their home in Pennsylvania to celebrate Thanksgiving with Maude’s parents, siblings, nieces, and extended family and friends in New Jersey. This year was no exception. Thanksgiving Day itself was very rainy and cold, but the holiday table was warm and inviting and everyone enjoyed the splendid food and excellent company. With the rain out of the way, Friday broke brilliantly sunny and unseasonably warm. The extended family quickly decided that a game of tag football was in order. Now Harold and Maude and Maude’s siblings are not as young and spry as they used to be, but the effects of aging held none of them back. Nor were they deterred by the fact that the ground was wet and muddy; something as inconsequential as field conditions would not get in the way of football. They drew up teams and drove to a nearby high school field to play. The first several plays of the game were unremarkable, but then Benny threw an amazing spiral pass just beyond Harold’s reach. Realizing this was a chance not only to make a touchdown but also to impress his youngest son with his athletic prowess, Harold leapt for the ball and almost completed the play. Unfortunately, though, he slipped on a muddy patch and fell to the ground in a heap. He felt a searing pain, heard a "pop" and knew that he had badly hurt his knee. Maude called an ambulance and accompanied Harold to Southern Shore Hospital in Toms River, New Jersey. After performing several diagnostic tests, the emergency room doctor discerned that Harold had torn his anterior cruciate ligament (the "ACL"), a ligament in the center of the knee that connects two of the leg bones (the tibia and the femur). The doctor recommended immediate surgery to replace the torn ligament.

Harold was wheeled into the operating room, where an orthopedic surgeon – Dr. Dana Dastardly – explained several surgical options. Following the surgeon’s recommendation, Harold elected an arthroscopic procedure using an allograft (i.e., a replacement ligament taken from a cadaver) and bioabsorbable interference screws, which would connect the new ligament to the bones and then would completely degrade over a period of twelve to twenty-four months and be replaced by new bone. The bioabsorbable interference screws were manufactured by Bioco, a Delaware corporation with its principal place of business in Palo Alto, California.

At first, it appeared that the surgery was a resounding success. Post-operative x-rays taken in New Jersey confirmed that the screws were affixed to both the tibia and the femur. Harold was able to return to Pittsburgh just days after the surgery and he began physical therapy right away. Unfortunately, just a week later, Harold noticed that his knee felt far less stable and more wobbly than it had immediately after the surgery. He went to see Dr. Randy Recovery, a Pittsburgh orthopedic surgeon, who ordered several tests. After reviewing an MRI, Dr. Recovery concluded that the bioabsorbable interference screw had broken off from the tibia and that the replacement ligament was no longer properly attached. Harold needed yet another surgery, and since this one could not be performed arthroscopically, Harold’s recuperation period was expected to be far longer and more difficult than originally anticipated. As he bitterly begins rehabilitation all over again, Harold is exploring his legal options.

According to Dr. Recovery and several other physicians with whom Harold has consulted, it is not clear whether the bioabsorbable interference screw itself was defective or whether Dr. Dastardly was negligent when he performed the surgery. All agree, however, that the screw broke off from the tibia after Harold had returned to Pittsburgh. Harold’s attorney is contemplating suit against Dr. Dastardly or Bioco or both of them (either together or in separate lawsuits).

Bioco is a small biomedical start-up company that has been in business for only two years. Its president and sole shareholder, Dr. William Biotec, attended medical school at the University of Pittsburgh School of Medicine while simultaneously pursuing a Master of Science degree in bioengineering in the University of Pittsburgh School of Engineering. Afterwards he completed his residency in orthopedic surgery at UPMC Presbyterian Hospital in Pittsburgh. In his spare time, Dr. Biotec designed, built the prototype for and tested the bioabsorbable interference screw. Upon completion of his medical training at UPMC, Dr. Biotec accepted a position on the research faculty of the Stanford University School of Medicine in Palo Alto, California. Before moving to California, Dr. Biotec formed Bioco and assigned his patent for the bioabsorbable interference screw to the company. Bioco’s headquarters and sole manufacturing plant are in Palo Alto. Dr. Biotec frequently gives lectures and in-hospital training to doctors throughout the country on the use of the bioabsorbable interference screw in ACL surgery. Often following such a lecture or training program, the hospital orders screws from Biotec. For example, following a training program at Southern Shore Hospital in New Jersey in late 2005, the hospital ordered a gross (144) of bioabsorbable interference screws from Bioco, two of which Dr. Dastardly used in Harold’s ACL surgery. Dr. Biotec has given several lectures and training programs at UPMC in Pittsburgh and Bioco has donated four dozen (48) screws to UPMC, at least thirty-six (36) of which have been used in ACL surgeries performed by UPMC physicians in Pittsburgh in the last two years. Bioco has not sold any of its screws to hospitals or doctors in Pennsylvania. Finally, Dr. Biotec has been invited to participate in a monthly colloquium series jointly sponsored by UPMC and the Pitt School of Engineering’s bioengineering program during the 2006-07 academic year. Dr. Biotec has traveled to Pittsburgh five times since August to participate in the colloquia.

For purposes of Subpart A only, assume that Harold’s attorney is contemplating suit against Bioco in the United States District Court for the Western District of Pennsylvania. Further assume that the district court would have subject matter jurisdiction to adjudicate the state-law products liability claim and that venue would be proper. Further assume that Bioco could be served with process in California in accordance with the Federal Rules of Civil Procedure. Finally, assume that the Pennsylvania long-arm statute authorizes its courts to assert personal jurisdiction over a nonresident defendant, who, in person or through an agent, "commits a tortious act within the state, or commits a tortious act without the state that causes injury within the state." Would the United States District Court for the Western District of Pennsylvania have authority to exercise personal jurisdiction over Bioco? Why or why not? Please explain your answer fully.

For purposes of Subpart B only, assume that Harold’s attorney is contemplating suit against Dr. Dastardly in the United States District Court for the District of New Jersey. Further assume that the district court would have subject matter jurisdiction to adjudicate the state-law medical malpractice claim and that venue would be proper. Further assume that New Jersey substantive law would provide the rule of decision and that Dr. Dastardly could be served with process in New Jersey in accordance with the Federal Rules of Civil Procedure. Finally, assume that New Jersey has a medical malpractice statute, which the legislature enacted in an effort to reduce physicians’ malpractice premiums, to reduce the volume of malpractice litigation and to permit the expeditious dismissal of frivolous malpractice claims. Section two of the New Jersey statute provides:

According to the legislative history, the purpose of section two of the New Jersey statute was to "curtail frivolous claims against physicians by ensuring, early on in the litigation, that medical malpractice claims have merit." In interpreting the statute, the New Jersey Supreme Court has stated, "The expert report must inform the defendant of the specific conduct the plaintiff has called into question and must provide a basis for the trial court to conclude that the claims have merit."

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides:

According to the advisory committee notes that accompany Rule 26(a)(2), the purpose of this disclosure requirement is "to provide information on expert testimony sufficiently in advance of trial [so] that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses."

Rule 37(a)(2) of the Federal Rules of Civil Procedure provides, "If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." Rule 37(c)(1) further provides, "A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not . . . permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions."

If Harold were to sue Dr. Dastardly in the United States District Court for the District of New Jersey and if he failed to serve and file an expert report and curriculum vitae of the expert within 100 days of filing the complaint, would the district court be required to dismiss Harold’s complaint upon the defendant’s motion to dismiss pursuant to section two of the New Jersey medical malpractice statute? Why or why not? Please explain your answer fully.

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