Part II: Essay Question I (45 points)

Recommended Time: 90 minutes

Doctor performed a hip replacement surgery on Peter’s hip by removing the existing hip joint
(that was causing Peter arthritic pain) and replacing it with an artificial joint made from metal
and plastic components designed by Flexor Corporation. Shortly after the surgery, Peter
developed severe hip and lower back pain near the location where the artificial joint was
inserted. Peter questioned Doctor about the type of artificial joint that was used -- he had read
online that artificial joints with plastic components could lead to chronic inflammation and pain.
Doctor explained that he felt the Flexor artificial joint was the best product for Peter’s condition.
Subsequently, on a personal notepad, Doctor wrote down in detail why he decided to use the
Flexor artificial joint on Peter, in the event that the hospital’s medical review board decided to
review his decision as part of their routine risk management process.

Within the applicable statute of limitations for a tort action for negligence (one year from date of
injury), Peter sued Doctor in federal district court, alleging that he was negligent in choosing
Flexor’s artificial joint to treat his hip arthritis. Personal jurisdiction, subject matter jurisdiction,
and venue were proper.

During discovery, Peter’s attorney propounded a Request for Production of Documents, asking
Doctor to “produce all medical records in Doctor’s possession, including personal notes, that
detail the rationale for using the Flexor artificial joint for Peter’s hip replacement surgery.”
Doctor’s attorney objected on the ground of work product doctrine. After the attorneys properly
met and conferred concerning Doctor’s refusal to produce, Peter’s attorney filed a motion to
compel Doctor to produce the documents.

About a year and a half after the commencement of the lawsuit, Peter learned that Flexor had
been sued by several patients in the past who alleged that they suffered severe hip and back pain
after Flexor’s artificial joint was used in their hip replacement surgeries. Peter immediately
sought leave to amend his federal complaint to add and include a claim against Flexor, alleging
that it had negligently designed the artificial joint. Flexor immediately filed an opposition on the
ground that the statute of limitations had already run.

Peter also learned that Doctor had lost a lawsuit brought by another patient who underwent a hip
replacement surgery using the Flexor artificial joint. The jury found that Doctor was negligent in
how he inserted the artificial joint into the bone during surgery. Peter sought to use estoppel to
establish Doctor’s liability in the present lawsuit.
 1. How should the court rule on Peter’s motion to compel? Please analyze.

2. How should the court rule on Flexor’s motion to dismiss Peter’s claim on the ground that
the statute of limitations had run? Please analyze.

3. Will the court allow Peter to use estoppel to establish Doctor’s liability in the present
lawsuit? Please analyze.

Part II: Essay Question II (15 points)

Recommended Time: 30 minutes

Addison and Channing, both from California, were injured in a three-car collision involving
Addison’s car, Channing’s, and Danny’s. Channing and Danny are from Arizona. Addison sues
Channing in federal court, seeking $200,000 for her injuries. The case is tried and Channing
wins, since the jury finds that he was not negligent.

Three months later, Channing sues Addison and Danny, seeking $50,000 for his own injuries in
the accident, also in federal court.

You are a partner at the law firm that represents Addison. You ask your associates about the
validity of the lawsuit against your client. The best response is from:

Associate #1: Channing’s claim against Addison is barred. He should have asserted this claim as
a compulsory counterclaim under Rule 13(a) in the prior federal suit and waived it by failing to
do so. But his claim against Danny is not barred, although he would need to sue in state court
instead.

Associate #2: Channing’s claims against both Addison and Danny are barred. He should have
asserted his claim against Addison as a compulsory counterclaim under Rule 13(a), and
impleaded Danny as a third party defendant under Rule 14 in the prior action.

Associate #3: Channing’s claim is not barred. He could not have asserted it in the prior action
since it did not meet the amount-in-controversy requirement.

Associate #4: Channing’s claim is not barred. The claim could have been joined in the prior
action but did not have to be, under Rule 13(b).
Explain the validity of ​each​ of the responses above, including why your selected one is the
best response.

END OF ESSAY SECTION

END OF EXAM