Essay Exam Question No. 1 :

Casey Corporation is a California importer of trimethyloxidole, a food ingredient which is used to enhance the shelf life of Sad Valley Ranch Dressing. Casey imports the trimethyloxidole from Atkins, Inc., the manufacturer. The trimethyloxidole is typically shipped by rail through Chicago, Illinois, and 8n to California. Casey Corp. sells the food ingredient untouched to Dodero Manufacturing in Oakland, California. There the trimethyloxidole is mixed with Dodero's own ingredients to create the salad dressing. The dressing is shipped to two different companies. Sad Valley places their own label on the ranch dressing and resells it to restaurants in the western United States. Dillon Distributing also purchases the salad dressing from Dodero and places its own label on the product. Its market is primarily super markets and retail sales.

Eight individuals began to experience varying symptoms and gastrointestinal ailments within a day after consuming Sad Valley Dressing on the lettuce and tomato salads eaten at the well known and upscale Triple Play Restaurant. Two individuals required hospitalization for their gastrointestinal ailments and one man died as a result.

CAUTION: Refrigeration is not necessary for this product. Exposure to excessive heat, and particularly heat above 103 ° may potentially cause a lethal chemical reaction. Care must be exercised at all times to prevent such exposure. In the event of heat exposure, please return this product C.O.D. for destruction to our plant.

 

A phone number is also provided and an address for the Atkins plant in Pennsylvania.

Through discovery, it's learned that the trimethyloxidole was shipped by S & P Railways. The rail cars that were shipping the trimethyloxidole were delayed for half a day in Chicago in August of this year.

You represent Max Ross, the brother of the only individual who died ingesting the salad at the Triple Play with Sad Valley Ranch Dressing. Max, who after having lunch with his brother, witnessed his brother double over in pain and then saw his brother transported by paramedics to San Francisco General, where he later expired. Max' brother was single and had no other living relatives.

Please advise Max as to the following:

- Who or what companies is/are subject to lawsuit and by whom?

- All theories that might reasonably be raised, as well as facts supporting these theories of liability.

- The damages that are compensable, and any defenses that would apply.

Essay Exam Question No. 2:

In her initial Complaint, Mrs. Donovan maintained that the cardiac surgeon negligently performed the anastomosis and that he failed to tie the sutures correctly, or nicked the sutures with a needle, crimped or burned the sutures as the doctor cauterized the bleeding during the aortic anastomosis. The hospital was sued on negligence allegations that its nurses failed to heed the warnings regarding the use of the sutures.

Because both the doctor and the hospital have answered the Complaint and alleged the suture was defective, Mrs. Donovan has now amended her Complaint to include Omega, Inc. (your client). She alleges a theory of express and implied warranty, negligence in the design, manufacture, inspection, packaging or writing of instructions or warnings about the sutures, strict products liability in the manufacturing of the sutures, and strict products liability in the sign of the sutures.

Omega had sent out a "Dear Doctor" letter approximately 4 months before the death of Mr. Donovan. In that letter, Omega noted that there had been a change in the standard of practice by cardiovascular surgeons and that many surgeons were now switching from interrupted sutures to continuous suture techniques for vascular anastomosis. The letter pointed out that there are certain recognized potential complications with the use of a continuous suture technique, especially with the improved and finer sized suture materials. Among those potential complications is that the use of the fine sized suture material and a continuous suture technique posed a greater risk to the patient if any damage to the suture exists, such as crimping or fraying.

Omega emphasized that despite its careful manufacturing and inspection, there remained the possibility that physical damage to the suture materials could occur from the time of removal from the package until the tying of the suture by the surgeon. The "Dear Doctor" letter warned that braiding, fraying or crushing of the sutures could lead to suture breakdown. Omega warned that application of clamps or forceps or rough handling of the suture could damage or weaken the synthetic fibers and lees to early failure.

You have been asked by the senior partner of your firm (who guided Omega through an initial public offering but who has very little product liability background) to prepare a memo explaining the theories that plaintiff will be pursuing based on their Complaint. She has also asked for an evaluation of the strongest arguments that plaintiffs can most likely present. The senior partner also asked that you briefly advise her of the affirmative defenses which need to be asserted. Finally, she has encouraged you to make any suggestions regarding methods to defend the case.

Please assume this case has been filed in California.

Sample Answer

1. What companies are subject to suit by the plaintiff Ross

Ross will want to bring various actions to establish the products liability of a number of defendants. As a general rule, in product liability actions, all of the commercial entities involved in the distribution chain are potentially liable, i.e., Atkin (the ingredient manufacturer(mfgr], Casey (the importer), Dodero (the dressing mfgr.), Sad Valley (who places its own label on the product it buys from Dodero), S&P(the transporter of the product), Triple Play (the restaurant where the plaintiff's brother ate the dressing).

Before dealing with the matter of which of the above potential defendants are liable and under what theories, the issue of the lettuce should be first addressed. Based on information disclosed in discovery, the lettuce which was purchased from Half Moon and served at Triple Play had a herbicide (mfgr. by Edwards) that could only be removed with hot water; and Brophy, a restaurant employee, washed it with cold water. Further the lettuce came with a bilingual warning in red. Edwards included a warning when sold to the farmer who used it.

The discovery and the facts of the problem do not indicate that the death of Ross's brother was a result of the herbicide. Rather, the information of the warning merely indicates how to remove the chemical. Max should thus be advised that a medical expert and perhaps a pathologist need to be hired to find out the nature of the danger of the herbicide, and whether it may cause other dangerous conditions when mixed with various other food substances.

If we discover that the herbicide is lethal, either alone or in combination with other agents, then there would be a cause of action for failure to adequately warn against Edwards, the mfgr., the retailer, Half Moon, the restaurant and the employee. The test of the sufficiency of a warning is whether the existent warning creates an unreasonable danger. Because the warning does not indicate the dangerous propensities of the chemical, no one knows of the possible risk -- assuming that our experts have found a risk to exist.

If true, we could bring a strict liability action against Edwards and Half Moon, where we would have to show: the product left their possession without substantial change, the warning was inadequate, the inadequate warning was the actual cause of the death, and the inadequate warning was the foreseeable cause of the death. Also, we would have to show.that had the warning been adequate such would have changed the conduct of the restaurant and the employee, and the likelihood of injury would have been reduced or eliminated. But all of this depends on what the experts and the trial team discover. 

We could also bring negligence actions against the mfgr., Half Moon, and Triple Play. Here, each has the duty to provide warnings to the user of dangerous products as measured by what kind of warning a reasonable entity would give in the same circumstances and given the existing information known or knowable at the time of manufacture. once the duty established, the breach could be shown by the reasonableness standard. of course, we would have to show that the agent was the actual and proximate cause of the death. The employee could also be sued for negligence, but given his position, it would not seemed worth while.

1. Atkin (mfgr.): Atkin makes a product which when exposed to heat causes it to become lethal. The warning says this, but given the nature of the harm, i.e., death, we could argue that the warning was wholly inadequate, that it crated an unreasonable risk. The lettering should have been larger and in red, "warning" language should have been used, and the actual risk should have been more clearly spelled out so as to motivate the parties along the distributive chain to heed the potential danger. Ross can use this theory both for strict liability and negligence.
We could also argue that Atkin is liable for negligent warning in that because of the heat problem and that the product has to be shipped long distances, the product actually does require refrigeration. this would potentially generate a  misrepresentation claim and a cause of action under breach of warranty.

4. Dodero: This company uses the preservative when it mixes it with its own ingredients to make the dressing. It has a duty to use component parts that are free of defects. Thus it could be liable for including a defective component in its product under a negligence theory of failing to properly inspect the product it got from Casey. And it could be subject to strict liability based on the defective warning issued by Atkin -- if established.

5. Sad Valley: this firm puts its own label on another mfgr's product, i.e., Dodero. Presumably this case is in California, where such an entity who does this has the same liability as the actual mfgr. Thus we could bring the same causes of action against it as we do against Dodero.

6. Triple Play: This company is subject to liability as the retailer in the commercial chain. Under negligence theory, it has the duty to provide its customers with products that are not defective. It could probably defend against this charge by showing that it had no way to reasonably inspect the dressing it received from Sad Valley. On the other hand, it could be subject to the above failure to warn strict liability action a because it is part of the stream of commerce.

Note that -- as between themselves -- theses defendants may already have shielded themselves from liability against each other based on the terms of the contracts between themselves, J such as hold harmless or disclaimers, or any other limitations they may have put on their liability. But any such agreements would not be a basis for defending against Ross, as his brother suffered the ultimate personal injury.

As for affirmative defenses against allegations made by Ross, there appears to be little that they could rely on. There is no assumption of the risk that is applicable to eating at a restaurant --at least this one. The product was not unforeseeably misused or misused at all. (This means that Ross could also bring a cause of action for breach of implied warranty of fitness for its intended purpose: the defendants know the  purpose to which the product will be put, they know that the decedent was relying on their expert judgment and skill, and the decedent actually relied on them when he ingested the product.)

Also, there appears to be no comparative fault on the part of the plaintiff's brother. The danger was not obvious and could not be discovered by inspection. pending additional discovery, Ross has a pretty good case.

2. Damages

Max meets the Thing test for negligent infliction of emotional distress: he has a close relationship to the victim, and he was present at the time the victim was injured and was aware of his brother's suffering. If Max suffered severe emotional distress as a result of his brothers death, and his emotional reaction was different than would be expected of a disinterested witness and was not in itself abnormal, then he could recover pain and suffering for his emotional distress as well as special damages for medical expenses, our of pocket expenses, and lost wages, both past and future.

Based on the fact that Max has no other relatives, he could also recover what his brother would have earned during the rest of his lifetime.

Given the result -- his brother's death -- Max may want to ' try and recover punitive damages. The defective product resulted from an inadequate warning. had the warning been properly given all the way down the commercial line, his brother would be alive today. the defendant's were egregious in placing the product on the market without proper safeguards. And now, Max is without a living relative. If the jury made such award and it was a large amount, the defendants could appeal arguing that it was too high, that the jury had no standard to go by (assuming the amount was lower than the award for the car paint job in Miss. recently overturned by the Supreme Court).

Question II

1. Plaintiff's theories

The defendant sent out a dear doctor letter apprising heart surgeon of the increased risk to patients where the suture material is damaged during use particularly in the continuous suture technique. The problem is that no where does the letter sent out inform the doctors that the consequences of damage to the suture material -- its becoming weakened and with an increase in the risk of failure -- does not spell out for the physicians that such a failure could lead to death if the suture failure occurs in heart surgery. The plaintiff will argue, that given the nature of the risk, a mere dear doctor letter was totally insufficient, that omega should have sent personnel, actual company representatives, to each hospital to which it sold the suture material to review the problems involved in the change in procedures, and it should have provided the customer (the doctors) with instructions on reasonable precautions it should take to reduce the risk of damage to the sutures from the continuous suture technique.

Omega could defend against this negligence action for failing to adequately warn by arguing that they had fulfilled its duty to warn the learned intermediary, the doctors, and that because of their training, skill, education and expertise, the doctors-themselves already know about the dangers which could
result from suture failure, particularly in heart surgery situations. But, as manufacturer of the product, Omega has a duty to warn of known uses of its product even when it was the doctors that brought about the changed practice, because Omega knows about the increase in danger.

Here, the plaintiff will argue that, under Barker v. Lull, the company's suture product is defectively designed -- the whole product line is defective -- as demonstrated by the product's failure of the ordinary consumer expectation test. She would argue that, the sutures fell below what an ordinary consumer would expect as to how a suture will function when used in its intended or foreseeable manner, as based on the minimally required knowledge available to the consumer.

Faced with this argument, Omega could argue that sutures are not a type of product that can be subjected to the consumer expectation test because knowing how the product will function is outside the scope of the ordinary consumer. They could argue that to know how such sutures will function requires expert knowledge, which would mean that if the case went to trial, the court would not instruct the jury on the application of the consumer expectation test.

But the plaintiff will no doubt anticipate this problem and simply plan on establishing the defective design of the product based on the second prong of Barker, i.e., by showing that the sutures were the actual and foreseeable cause of the decedent's death. Thus, Omega must be prepared. At that point the burden would shift to the defendant to show that the dangers inherent in the challenged design (the material out of which the sutures are made and the size of sutures) are outweighed by the utility and benefits of that design. In preparing to make this risk/utility balancing test, Omega should review the factors that the court would permit the jury to consider in assessing the application of the test: the risk of serious danger; the likelihood that people would be injured; the existence of a feasible, safer alternative design; the cost of the alternative design; thee adverse effects that implementation of the design may have on the consumer and the product.

Here, Omega could make a strong argument that the utility of the suture design does outweigh the risks, if the risks are actually quite low and the result with the decedent was due to his long standing pre-condition, his history of serious heart problems. Omega could argue that, on balance, vastly more people benefit from the current design than are injured (if they could show this with expert testimony). If alternative suture designs do not exist or exist but are not feasible, i.e., the design could not have been practicably implemented at the time of manufacture of the suture used in the operation, that would make the balance swing much more in Omega's_favor.

This is perhaps the plaintiff's weakest cause of action. to survive summary adjudication, the plaintiff would have to show that-the sutures used in the heart operation were a product defect, that the sutures departed from the standard for manufacturing set by Omega. She would have to show that the defective condition existed at the time it left the possession of Omega and that it underwent no substantial alteration. The problem is that the sutures failed for precisely the reason that Omega warned of, albeit insufficiently. Without proof of a defective product, the plaintiff's claim fails.

d. Implied warranty claims

The plaintiff will argue that she has a cause of action for breach of implied warranty for fitness of purpose for which the product was intended. To show such a breach, she must establish that the seller, Omega, had reason to know of the purpose for which the sutures would be used. It obviously did. Further, she must show that the user, here the doctors, were relying on the skill and judgment as to the use of the product, that they were looking to Omega for guidance because of its superior knowledge in the area of suture use. Finally, she must show that, the doctors actually relied on the information provided by Omega when it provided them with the product. If she can show this, she can establish that the product was not fit for its intended use -- it broke in the patient and he bled to death.

Omega can argue that, on the contrary, they were aware of the potential problem of suture rupture when being used in heart surgery, and that was why they sent out the letters to the doctors. The plaintiff's claim would most likely fail.

As mentioned earlier, Omega can try and defend against the plaintiff by arguing that he had a pre-existing condition which brought about the rupture of the sutures and caused the excessive bleeding.

As to the design defect claim, Omega could argue that the information upon which it based its dear doctor letter contained the information that was took in to account the state of the art of information known in the medical and scientific community, and that the warnings fully complied with that standard.

Also, Omega could argue that sutures can be considered medically implanted devices which in California are treated like prescription drugs, i.e., such products are not subject to strict liability claims (like drugs) if they are properly prepared and adequate warning of the unavoidably risks is given. Thus, Omega would make an analogy between the drugs covered by comment K of the-Restatement and medically implanted devices such as sutures.  the question would be whether the court would make that leap.

As already mentioned, Omega can claim that it gave the learned intermediary adequate warning and that based on that, the doctors' conduct was an intervening superseding cause that resulted in an unforeseeable result, thereby shielding Omega from liability. But, given what the defendant already knows about its product, it would be difficult to show that the injury to the victim was not foreseeable.