The Claremont Cyanamid Company (“CCC”) specializes 

The Claremont Cyanamid Company (“CCC”) specializes in a highly-carcinogenic chemical called “acrylon,” used in computer-chip manufacturing.

The Claremont Cyanamid Company (“CCC”) specializes

There will be three essay questions worth a total of 100 points.  Points will be awarded based on your ability to follow the IRAC methodology to analyze the questions, Review the course text, Chapter 2: IRAC Methodology (page 32).  You will have 90 minutes to perform the test from the time you start it.  You may refer to any notes from class, the power points from class, and any study aids you have personally created, and the book.  Also, you may not use third-party sources such as the internet.  Therefore, you should not cite outside sources of law.  Analyze the questions as thoroughly as you can, so long as you stay within the bounds of reason. Good luck.

Question 1

The Claremont Cyanamid Company (“CCC”) specializes in a highly-carcinogenic chemical called “acrylon,” used in computer-chip manufacturing.  The Orange Company calls CCC and orders 7 metric tons of acrylon for use in computer chips being manufactured for its recently-announced line of IPlanes, self-propelled aircraft favored by the rich and famous for travel.  It’s already July, and Orange has announced that the iPlane line will be for sale before the holidays.   One of the characteristics of acrylon, though, is that it is highly flammable at very low temperatures–around 30 degrees–which means it must be transported in special refrigerated rail cars.  CCC rents its train cars from the Pomona Pacific Railroad (“PPR”), a well-respected railway operator in business for approximately 150 years.  CCC called PPR and told it that on Thursday, it would deliver 7 metric tons to the railyard for loading and shipping to Orange.

On the day of the delivery (Thursday), specialized trucks containing 7 metric tons of acrylon appeared at the railyard and prepared for loading. Unbeknownst to either CCC or PPR, one of the three railcars provided for the purpose had a defective nozzle.  The nozzle was particularly likely to give way under stress or pressure.  The acrylon was loaded on to the train without incident, and the train started on its way to Orange.

About halfway between Claremont and Orange was a large farm bisected by the railroad tracks, owned by Farmer Bob. Farmer Bob had woken up early that day and decided it would be an excellent day to move his herd of cows to a different part of the pasture.  He was doing so as the train approached.  Suddenly, an inadvertent train whistle blew, frightening the cows and causing them to stampede toward the track.

Unnerved by the angry horde of cows rushing at the train tracks, the train engineer hit the emergency brakes and slowed the train to a stop without injuring any of the cows (NOTE: No animals were injured in the course of this hypothetical.)  Unfortunately, the pressure of the sudden stoppage caused the nozzle to fail, allowing the 75 degree outside air into the compartment.  An explosion resulted that destroyed all three railcars, and injured seven railroad employees.  Between the times it took to replace the acrylon (delayed further by the weeks it required to repair the track), Orange missed its deadline to market iPlanes for the holiday season at a loss of billions in potential revenue.

Analyze all potential causes of action, liability, and defenses for the following parties:

1) CCC

2) PPR

3) Farmer Bob

QUESTION 2

Cucamonga Laboratories is one of a dozen pharmaceutical companies that produce a synthetic version of a hormone commonly prescribed to pregnant women believed to be at risk of premature labor.  We will call it Hormone X.  Cucamonga had originally filed for the patent of the original hormone, but the patent has since expired, and since then a multitude of producers provide a generic and commodity version of the same hormone.

Lauren was excited to find out that she was pregnant for the first time, but when she went to the obstetrician and had some routine tests performed, he found that she was at risk for premature labor, and prescribed her Hormone X.  Hormone X had long been considered the appropriate prescription for a person with Lauren’s test results, and most doctors would have agreed with the prescription here.  About 1 in 5 doctors, however, would probably hold off and take another test to determine whether the conditions remain that make the hormone necessary, given that it has some known side effects such as weight gain and light nausea.

For its part, Cucamonga and the other producers of Hormone X had all relied on the same set of disclosures which had been required by the FDA when the drug was still approved.  None of the companies had done any further research into the safety of Hormone X; it turned out later that Hormone X had been exposed by a whistleblower from one of the other companies that had done his own research and discovered the carcinogenic qualities of the product.  After he attempted to raise those issues with his employer, he was swiftly fired, locked out of his office, and escorted out of the office.

Lauren’s pregnancy lasted a full term, but just before she gave birth, the Food and Drug Administration announced that it had determined Hormone X should no longer be prescribed except in extreme cases on a fully experimental basis.  As it turned out, new tests had determined that Hormone X is highly carcinogenic, and increases the risk of birth defects.  Taking Hormone X also exposes the birth mother to increased risk of pre-cancerous and cancerous growths.  Lauren does not know, however, which manufacturer of Hormone X is responsible for making the hormone that she was administered during her pregnancy.  Nor is there any way to know, because the hormone is produced by various companies based on factors of supply and demand, and are not marketed by brand.

Lauren’s newborn daughter was born without apparent birth defect.  Lauren herself has not developed any growths, but all women that have taken Hormone X have been recommended to obtain annual colonoscopies and biopsies to ensure that potential cancers are found early.  Nevertheless, she has sued Cucamonga and all of the other manufacturers of Hormone X.

Analyze Lauren’s potential causes of action on behalf of her and her daughter, and analyze any defenses that Cucamonga or any of the other manufacturer defendants may have in this action.  Also analyze any causes of action that may be brought by others.

QUESTION 3:

Erica is a 32-year-old woman in relatively good health, with the exception that she suffers from occasional loss of consciousness as a result of epileptic seizures.  These are infrequent, and she has fully disclosed her impairment pursuant to the law of her state, which has allowed her to obtain a Driver’s License.  One day, while out driving, she suffers an epileptic seizure and loses control of her vehicle.  She loses consciousness and drives into the window of a oceanside surfshop owned by Ariana, who is injured and suffers damage to her shop.

When Erica goes to the hospital for her injuries, her Blood Alcohol Level is calculated to be .085, just a shade over the legal limit, a result of a couple of glasses of rose at lunchtime.  Though her disability does require her to satisfy certain additional requirements to drive, none of them have anything to do with alcohol–put another way, she must simply follow the same law as everyone else.  After the blood alcohol test is administered, she is cited and convicted of misdemeanor reckless driving–a plea bargain that allows her to avoid a charge of driving under the influence.

Analyze all possible theories of Erica’s liability to Ariana, and their relative likelihood of success.  Which arguments do you think would most convince a jury?  And are there any arguments you would not want to make, even if you thought they were good ones?

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