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Note: this problem is a mini-course review. It will
help you review important materials on discovery, summary judgment,
and trial. This is the first of a series of course problems containing
a "Supplemental File." These files will expand as we
work our way through the course, whereby we will integrate materials,
other than the usual exam narrative approach, into our legal
analyses--aka law practice.
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[a] Perry is a fireman. While Perry is fighting a fire
inside a burning building, the fire truck's water pump malfunctions.
Perry is badly burned. Perry's lawyer sues Darley,
an out-of-state pump manufacturer. Perry thus alleges strict
liability, due to the pump's failure to function as designed.
Since the accident, Perry has been severely emotionally distressed.
He often screams in his hospital bed, and appears to be still
fighting the fire that burned him.
[b] The fire company's pump expert (Ellen) was sent
to the scene of this fire, a typical fire department practice,
before it was brought under control. She is later retained as
plaintiff Perry's consultant to furnish Perry's lawyer with her
opinion about whether the pump malfunctioned. Darley's lawyer
wants to depose Ellen. Ellen is one of a handful of qualified
firepump experts in the United States. She is generally regarded
as the most qualified of all such experts.
[c] Assume that Ellen is deposed by Darley's lawyer.
She is asked the following question: "What caused the pump
to malfunction?" Her answer is as follows: "The pump
did not malfunction. My fire company failed to maintain it. The
periodic routine maintenance was never performed, causing the
pump's internal oil-release valve to freeze shut." This
deposition testimony is the defense's affidavit filed in support
of Darley's motion for summary judgment. Perry's counter-affidavit
in opposition to summary judgment includes the fire company records
which suggest that the fire company apparently performed all
routine maintenance on the pump.
[d] Assume that Darley's summary judgment motion is
denied. Ellen subsequently suggests a design modification of
the pump. The manufacturer implements this subsequent remedial
repair. Evidence of this design modification is not admissible
at trial to prove liability. This evidentiary limitation promotes
safety by protecting manufacturers from potential liability,
based on a jury's likely misinterpretation of the modification
as admitting liability.
[e] Perry's lawyer sends a set of interrogatories to
Darley, asking whether there have
been any design modifications to the Darley pump. Darley's lawyer
refuses to answer
the interrogatory, on grounds of privilege.
[f] Perry's lawyer then sends a request for admissions,
requesting that Darley admit
that the original pump design was the cause of Perry's injuries.
Darley admits the design modification, but refuses to admit that
the original design caused Perry's injuries. Perry then moves
for partial summary judgment against the pump manufacturer on
the liability issue, based on its admitted post-accident design
modification.
[g] Perry is later terminated by the fire department.
He is unable to perform his former duties as a fireman. Perry
timely amends his original complaint (which had named just the
pump manufacturer Darley) to add the fire department as a new
co-defendant. Perry seeks a judgment that will reinstate him
in the defendant fire department, with back pay, since he could
have worked in some administrative capacity in the fire department.
Just prior to trial, Perry requests a jury trial on the amended
claim against the fire department.
[h] At trial, the same information contained in the
prior portions of this problem are
offered as evidence by the plaintiff. Although there are objections
by the defendants
to the plaintiff's evidence, these objections are overruled by
the judge. Darley, the
pump manufacturer, considers making an oral Motion for Judgment
at the close of plaintiff's evidence. Darley's lawyer decides
not to bother, since this judge has not
been very receptive to defense motions thus far. The jury finds
for plaintiff Perry, returning a verdict that the pump was the
proximate cause of his injuries. Darley
now files its Motion for Judgment.
QUESTIONS:
1. Is Darley entitled to a mental examination of Perry?
2. Could Darley's lawyer have objected to the deposition question
....(that
Perry's lawyer asked Ellen)?
3. Is any written report by Ellen work product? If not, why?
If yes, why?
4. Should the judge grant Darley's motion for summary judgment?
5. Was Darley's interrogatory (non)answer appropriate? Should
the court grant
.....Perry's
motion for partial summary judgment on the liability issue?
6. Is Perry entitled to a jury trial on his claim against the
fire department?
7. How would a federal judge rule on Darley's post-verdict Motion
for Judgment?
8. Food for thought, since "Jurisdiction" will be on
the Civ Pro II final exam:
....Any
IPJ problem? Any SMJ problem?
SUPPLEMENTAL FILE
(Hypothetical Codes & Cases)
..........................................State Government Code:
Section 68606(n).
All public and certified volunteer fire fighting facilities shall
maintain records regarding routine maintenance of all firefighting
equipment that requires routine maintenance.
..............................................................*
* *
Section 68606(z).
Upon notice of injury to any firefighting personnel, the firehouse
captain shall dispatch a qualified member of the county fire
department to investigate
and report to the captain regarding the cause of such injury
or injuries. A report shall
be prepared and forwarded to the captain's watch commander for
further analysis by
public authorities.
..........................................Federal Appellate Case:
................................Gilligan v. Lifelong Vacation Resorts, Inc.
...............................................................*
* *
Given the fact that plaintiff Mr. Gilligan has
established that the statute of limitations
did not extinguish his claim, we now turn to the trial court's
decision regarding his
objection to the defense request for a report held by Gilligan's
attorney. The plaintiff's lawyer hired an engineer regarding
the ability of the vessel in question to sail for long distances
over the vast ocean spaces of the South Pacific. Because plaintiff
Gilligan
had not designated this expert-consultant as his trial expert,
he claimed that this report
was protected under FRCP 26(b).
However, reports made in the due course of
business, which must be made available
to the public upon demand, cannot be cloaked with such protection.
Such a characterization would effectively remove such reports
from public view. They may
be prepared in anticipation of litgation, and the lawyer may
have such reports in his/her litigation file. Yet their location
in a trial lawyer's file does not cloak such reports with the
protection afforded by the work product doctrine. This would
frustrate the public policy favoring public access to otherwise
routine accident reports which must be preprared and made available
for all who have an interest in ensuring the safety and scrutiny
of public service providers.
Question:
What impact does the information in this Supplemental File have
on your
...............analysis of Problem Two? Be sure to include that in
your analysis of the
...............issues presented. |
