GOLDEN GATE UNIVERSITY

PRODUCTS LIABILITY - FALL 1997

INSTRUCTOR: MICHAEL .I. FITZSIMMONS, ESQ.

1. This is a closed book exam.

2. Total time is three hours.

3. The exam consists of three essay questions on 7 pages.

4. I recommend that you spend one hour on each essay question. However, you are free to allocate your time as you wish.

 5. Each question is equal in value. The total worth of each question is 50 points.

6. Answer each essay question in the blue books provided. Please write on every other line and on only one side of the page.

 7. Please be to sure to write your exam number on your blue books and on the exam question.

 8. Turn in all questions, scratch paper and blue books after the conclusion of the exam.

 Thank you.


ESSAY #1


Natascha was cleaning the bathrooms in her home with SB water stain remover. She had purchased the water stain remover at the Quik Stop mini market in her neighborhood. SB Products, Inc. is the manufacturer of SB water stain remover.

The large plastic bottle of SB contained a label which stated in capital letters "DANGER MAY BE FATAL OR CAUSE PERMANENT DAMAGE. VAPOR HARMFUL. CAUSES SEVERE BURNS WHICH MAY NOT BE IMMEDIATELY PAINFUL OR VISIBLE. READ CAREFULLY ALL CAUTIONS ON BACK PANEL. KEEP OUT OF REACH OF CHILDREN." The back panel indicated that SB contained a 6% solution of hydrofluoric acid. It also included the following cautions: "Danger, contains hydrofluoric acid. Use only with rubber gloves. Avoid contact with skin. Do not taste, swallow or breathe. Rinse empty container thoroughly with water before discarding. "

The label also contained a First Aid section which warned that if the liquid came into contact with the skin to flush the skin with water for 15 minutes and immediately remove contaminated clothing. It also stated: "Be careful to clean tinder fingernails. " In addition, the label provided that if contact should occur with the eyes to "rinse immediately with water. Remove contact lenses, if any, and then flush eyes with water for another 10 to 15 minutes. " Finally, the label stated that "If swallowed, rinse mouth. Drink a glass of water or milk. Do not induce vomiting. Obtain immediate medical care. Call your poison center, emergency department or physician. "

Natascha wore latex gloves and a face mask by using SB. As she was cleaning the bathroom sinks, she noticed that her hand was becoming wet, but assumed it was from perspiration and did not check to see if there was a hole in the glove. When she took her gloves off later to make a phone call, she noticed that the fingers on one hand were gray and wrinkled. She had no pain or discomfort at the time and believed that the color change was a circulation problem. She continued to use the product. After passage of several hours, she noticed pain in her hand.

She then placed her hand in water and complained to her husband. Mr. Natascha noticed a hole in the glove and took his wife to the emergency room. By the time she was seen by a physician, she had suffered a serious injury to the skin and underlying tissue. She required over $35,000 of medical treatment and rehabilitation. Within the statutory time period, plaintiff filed a lawsuit against SB, alleging various theories of product liability, including (1) design defect under the Consumer Expectation Test; (2) design defect under the risk/benefit test; and (3) failure to warn.

At trial, Natascha produced an expert chemist, who testified that hydrofluoric acid is dangerous. His testimony was that it is "too dangerous to use in any amount in any consumer product regardless of whether warnings were placed on the label". He also stated that, in any event, adequate warnings would not fit on a bottle. He pointed out that hydrofluoric acid, even in a 6% solution, is dangerous, hazardous and "extremely insidious." He said most people would not realize that they had been exposed until several hours after the exposure. The acid can migrate through the skin without causing a sensation and cause damage to the underlying tissue.

Plaintiff also presented the testimony of her medical doctors, verifying that she had neurological deficits in the hand and significant skin and tissue damage as a result of the hydrofluoric acid.

The defendant, SB Corporation, presented testimony that many household products are sold in the consumer market which contain hydrofluoric acid. These include wire wheel cleaners, ceramic tile cleaners, rust removers, etc. Defendants also pointed out that the Consumer Products Safety Commission has a labeling guide for consumer products containing hydrofluoric acid and defendant's label is consistent with this guide. Before the matter went to trial, SB Corp. came out with a "new and improved" SB water stain remover. The new and improved product substituted hydrofluoric acid with ammonium bifloride. This is a safer compound. During discovery, an SB employee testified that the new formula was safer and cheaper to make and transport. It was also consistent with the Environmental Protection Agency guidelines on consumer products. The product did, however, take twice as long to work on the surface, (30 vs. 60 seconds) but appeared to be as effective as the old product.

Discovery also revealed that in the 30 years in which this product had been on the market, there had only been two other claims of injury that proceeded to litigation.



Question l: Briefly discuss whether the existence of the new and improved product is admissible into evidence and, if so, for what purpose.

Question 2: Briefly discuss whether the evidence of only two other injuries in 30 years is admissible.

Question 3: Briefly discuss whether the Consumer Products Safety Commission labeling guide is admissible and, if so, for what purpose.

Question 4: Analyze each of the three theories propounded by plaintiff utilizing the facts of the case and making whatever reasonable assumptions are appropriate in reaching a conclusion of whether a jury will decide in favor of plaintiff or defendant.


ESSAY #2

Mrs. S., a 55 year old woman, who was an employee of the Wally Mart store in her town, decided to step out into the vestibule area between two sets of automated doors to smoke a cigarette. She was standing with her back to the first set of exit doors in the vestibule. As the doors were swinging open, they struck her and knocked her down. She suffered a broken hip. A faded warning was present on the doors that stated not to stand too close to them as they were opening. The doors had been manufactured by Magic Door Company in 1982. The doors were installed by Wally Mart in 1982 and maintained by Wally Mart since then. Current designs of automatic opening doors permit them to slide sideways, rather than outward. However, this door design continues to be manufactured and available to customers.

Mrs. S. was taken to Mother of Perpetual Annoyance Hospital. She underwent hip replacement surgery by a board certified orthopedic surgeon. He used an FDA approved prosthesis. Two months after the surgery, Mrs. S. experienced significant pain. X-rays revealed that the prosthesis had cracked along the longitudinal plane. A second surgery was required to replace the defective hip replacement manufactured by HIPS R US Industries.

Assume that you are in California. Identify only those entities or individuals who can reasonably and appropriately be sued by Mrs. S.; please identify the theories upon which you will bring suit against each defendant. Please also discuss reasonable affirmative defenses that can be raised.


ESSAY #3

Kevin, a contractor specializing in concrete pouring and removal, had purchased from Chadco a concrete cutter. Chadco was a local hardware store selling general and specialty construction tools to both professionals and novices. The concrete cutter was manufactured by Tinaco Manufacturing. The blade in use for the concrete cutter had been manufactured by an English company, Victoria, Ltd. Kevin properly assembled the concrete cutter at home and followed the instructions which had been provided by Tinaco.

The blade, which was provided with the cutter, did not include any instructions or warnings. The blade did however, in bold print had the word "wet" printed on it.

Tinaco, along with the assembly instructions, included several warnings throughout, stating: "If using a wet blade, frequently water the blade and surface being cut to avoid risk of blade degradation." No other warnings were included with the concrete cutter.

Kevin's neighbor, Jane (a lawyer with very little practical experience in concrete sawing) indicated that she was going to be removing the cracked concrete patio in her backyard. Being a kind, generous and considerate individual, Kevin offered to lend Jane the concrete cutter. Along with the concrete cutter, he gave Jane the booklet, including the general instructions and the warning: "If using a wet blade, frequently water the blade and surface being cut to avoid risk of blade degradation." No other warnings regarding the blade were in the instruction booklet.

Jane tackled the task of destroying the cracked concrete patio with a vengeance. She began cutting the concrete but did not use water to lubricate the blade. Within a few minutes of initiating the cutting, Jane noticed that the cutter was vibrating excessively. The machine had a kill switch located near the blade at the bottom of the cutter. There was no other kill switch on the blade. Jane was able to press the kill switch with her right foot.

After examining the concrete cutter and blade, Jane was convinced that nothing was wrong and restarted the machine. Within minutes, the concrete cutter began again vibrating violently.

As Jane reached with her right foot to kill the switch, the blade broke into pieces. Unfortunately, as the pieces spiraled away, Jane suffered some cuts to her right leg and foot. The spiraling blades also spiraled off and broke a large picture window.

With respect to each individual below, identify the theory or theories upon which Jane can seek damages and the defenses which may reasonably be raised.

 

Kevin, the contractor.

Victoria, Ltd.

Chadco

Tinaco