Student Test No.

1. For anonymity, use your assigned test number which was mailed to you.

2. Put your test number on this page and on all bluebooks.

3. If you do not know your test number, you may obtain it in the Registrar's Office (Cindy Egeness) during the first 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.

GRADUATING SENIORS: If you are a graduating senior, note this fact on all bluebooks and this exam paper. DO SO CONSPICUOUSLY.

TYPING AREA: If you are going to type your examination, the typing area is located in Room 230. You must return the exam to this room at the conclusion of the exam period.

INSTRUCTIONS

1. This exam contains 12 problems. Answer the question or questions in each of the problems in

the space below each problem. If you need additional space, use the back side of each page. For

grading purposes, all 12 of the problems are weighted the same, so budget your time accordingly.

To complete the exam in the allotted 2 hours, you should plan to spend an average of 10 minutes

per problem.

2. Unless otherwise indicated, assume that the Federal Rules of Civil Procedure and Minnesota

Rules of Professional Conduct apply.

3. Remember to indicate on your exam cover sheet if you are a graduating senior.

THE FOLLOWING HYPOTHETICAL RELATES TO PROBLEMS 1 THROUGH 6.

Marilyn Mason visited her physician, Dr. White, in December 1996 about getting a prescription for a new drug she had heard of called "Closine" which was advertised as an aid to persons desiring to lose weight. Dr. White had not heard of Closine before but agreed to check

into it for Mason. Upon consulting the "Physicians' Desk Reference" and Internet, he learned

that Closine is manufactured by a Califomia company called Physio Pharmaceuticals, that the

drug had been just recently approved by the FDA, that it is taken in pill form, and that it has been

quite successful in helping obese individuals lose weight. Dr. White wrote a prescription for

Closine for Mason which she had filled at her local pharmacy.

Mason experienced significant weight loss in the first few weeks she was taking Closine.

While at a New Year's Eve party, Mason decided that her recent weight loss entitled her to

"splurge" for one night. She consumed a lot of rich food and alcohol. Shortly after midnight,

Mason began experiencing severe abdominal cramps which caused her to be rushed to the

hospital. She underwent surgery in which her gall bladder and part of her stomach had to be

removed. She also discovered while in the hospital that she had been pregnant and that her

attack had caused a miscarriage. Mason believed her injuries to be the result of Closine after

hearing of similar episodes from other women taking the drug. She went to an attorney and

ultimately filed suit on behalf of herself and her unborn child against Dr. White and Physio in

federal district court in Minnesota on January 20, 1997. Dr. White is a resident and citizen of

Wisconsin.

PROBLEMS

1. Dr. White and Physio Pharmaceuticals and their respective attorneys held a meeting to discuss their strategies for defending against Mason's claims including ways in which they might cooperate in discovery and trial preparation. The same group met again the following day with the two defendants' respective experts to compare thoughts about the facts of the case, Mason's theories, and the state of the medical literature regarding the adverse effects of Closine alleged in Mason's complaint. Can Mason's attorney discover what was said during these meetings? Explain.

2. After the close of discovery, Physio disclosed to its attorney that it had falsified certain documents that it had submitted to the Food & Drug Administration ("FDA") as part of its application for approval to market Closine. Specifically, it had failed to mention the adverse effects of the drug reported in clinical trials in Europe. At the same time, Mason told her attorney that she had falsely testified in her deposition about the number of Closine pills she had taken each day. Instead of taking two pills per day as prescribed, and as she reported in her deposition, she actually took six per day figuring that she'd lose weight more quickly. Should counsel for Physio and Mason disclose these revelations by their respective clients? Explain.

3. Mason's attorney learned that Physio's former vice president in charge of research, who discovered and developed Closine, Tom Adams, left Physio to go work for the Minnesota Department of Health. Around the same time, Physio's attorney learned that Mason got divorced during the lawsuit and that the divorce was rather hostile. Mason's ex-husband is now living in Rochester. Can the attorneys for Mason and Physio conduct ex parte interviews of Adams and Mason's ex-husband, respectively? Explain.

4. In response to Mason's complaint, all three Defendants moved to dismiss the claims brought on behalf of Mason's unborn child arguing that a fetus has no capacity to bring civil claims for damages in Minnesota. The court denied the motion reasoning that it is not clear under Minnesota law whether a fetus can bring such claims. Ten months later, while Mason's case was still pending, the Minnesota Court of Appeals stated in a different case that Minnesota law has never recognized the right of a fetus to sue for civil damages. Upon learning of this ruling, the Defendants immediately moved for partial summary judgment in Mason's case as to the claims of her fetus and requested sanctions under Rule 11. Would the Defendants be entitled to an award of sanctions under Rule 11? Explain.

5. [Assume for purposes of this question only that Mason originally brought her lawsuit in state district court in Ramsey County and that Dr. White is a citizen of Minnesota.] On January 30, 1998, two months before the discovery deadline, the parties received an order granting Dr. White's motion for summary judgment which concluded that he did not know the alleged adverse effects of Closine and was not negligent as a matter of law. The day after the discovery deadline, Physio filed a petition to remove the case to federal court on diversity grounds. What argument(s) could Mason make in support of a motion to remand the case?

6. During her deposition, Mason testified that she had not finished the original bottle of Closine pills she received and that her former husband had thrown the bottle and unused pills away sometime after the suit began. She also testified that just prior to her hospitalization she had discarded a personal diary she had started to keep of how she was feeling while attempting to lose weight on Closine. How might Physio respond to this information?

THE FOLLOWING HYPOTHETICAL RELATES TO PROBLEMS 7 THROUGH 12.

Tommy Trucker sees the UPS strike as a business opportunity. He buys an old Ford truck at an

auction in his hometown of Hudson, Wisconsin, takes out a newspaper ad, and starts a

delivery/messenger service in the Minneapolis/St. Paul area. On his first day of business, Trucker

is driving with a full load of packages when his brakes fail. The truck careens through an

intersection and into the plate glass window of Jamie Java's Coffee Shop. No one is hurt, but the

Coffee Shop is seriously damaged, so much so that Java is closed for repair during the annual

International Java Festival in St. Paul. The Shop generally does over $100,000 in business during

the Festival. Java sues Trucker, the Hudson auctioneer, and Ford Motor Company in federal

district court in Wisconsin, requesting damages for the damage to the Shop and for lost sales.

PROBLEMS

7. You represent Java. Java tells you that she has limited resources for this dispute, and instructs

you to litigate this case as efficiently and as economically as possible. You want to start by

finding out whether or not Ford Motor Company has had any other complaints about brake

problems, and Ford's response to any brake complaints. Java asks you to identify the options for

obtaining this information, and then make recommendations on which options to use. What will

you tell her and why?

8. You represent Ford. Java serves the following interrogatory: "Identify all complaints about brake failure made to any Ford employee, beginning in the year Henry Ford introduced brakes in

the Model T." What is your response and why?

9. You represent Trucker. You have a Rule 26(f) conference with all the parties. You draft 26(a) materials and submit them as required. Java submits no 26(a) materials. What are your options in light of Java's failure to comply with Rule 26(a)? What option do you elect to take, and why?

10. You represent Java. You serve document requests on Ford on October 1. On November 1

you have received no response whatsoever. What are your options? Which course of action

would you choose and why? What are the potential consequences for Ford?

11. You represent Java. During his deposition, the auctioneer testifies that he had no actual

knowledge of the brake problem on the Ford sold to Trucker. Before discovery is completed, the

auctioneer files a motion for summary judgment, arguing that his lack of actual knowledge

precludes any liability for Java's claims. Your research reveals that Wisconsin law would make

the auctioneer liable if he had actual or constructive knowledge of the brake problem. What are

your options in response to the auctioneer's motion? What arguments do you make in support of

your position?

12. You represent Java. Ford proposes a reasonable settlement with Pierringer release. Java asks you to : (a) explain how a Pierringer release works and (b) make a recommendation about taking the offer. How do you respond?