Answers to Summer 2011
California Bar Exam Questions

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Summer 2011 Bar Question 2

Civil Procedure

Doctor performed surgery on Perry’s spine to insert a metal rod designed by Bolton, Inc. (Bolton). Shortly after the surgery, Perry developed severe back pain at the location where the rod was inserted. Within the applicable statute of limitations for a tort action for negligence, Perry sued Doctor in federal district court, alleging that she was negligent in using Bolton’s rod for the kind of back condition from which he suffered. Personal jurisdiction, subject matter jurisdiction, and venue were proper.

During a deposition, Perry’s attorney asked Doctor to state whether she had performed any other spine surgeries using Bolton’s rods and, if so, whether any of those surgeries had resulted in complications. Doctor’s attorney objected to the questions on the ground that the information requested had nothing to do with whether Doctor was negligent as to Perry, and Doctor refused to answer. After the attorneys properly met and conferred concerning Doctor’s refusal, Perry’s attorney filed a motion to compel Doctor to answer the questions.

Shortly after the statute of limitations had run, Perry learned through a newspaper article that Bolton had been sued by several patients who alleged that they suffered severe back pain after Bolton’s rod was inserted into their spines during surgery. Perry immediately sought and obtained leave to amend his federal complaint to join and include a claim against Bolton, alleging that it had negligently designed the rod. Bolton immediately filed a motion to dismiss Perry’s claim against it on the ground that the statute of limitations had already run.

Perry also learned that Doctor had lost a lawsuit brought by another patient with a back condition like his who had also alleged negligence by Doctor for inserting Bolton’s rod into his spine. Perry filed a motion for summary judgment against Doctor on the basis of preclusion.

1. How should the court rule on Perry’s motion to compel Doctor to answer? Discuss.

2. How should the court rule on Bolton’s motion to dismiss Perry’s claim on the ground that the statute of limitations had run? Discuss.

3. How should the court rule on Perry’s motion for summary judgment? Discuss.

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Civil Procedure
Question 2, Summer 2011

1. Motion to compel
All information is discoverable if it is likely to lead to relevant evidence. Here, a question concerning whether a doctor being sued for malpractice in the use of a Bolton rod had previously inserted the same rod in other patients and whether complications occurred is highly relevant in this trial.

Perry later learned that Doctor had lost a lawsuit by another patient concerning the surgical insertion of the same Bolton rod. This shows that the evidence sought by the question was relevant.

Therefore, the evidence is discoverable and the court should grant Perry’s motion to compel Doctor to answer the question.

2. Motion to dismiss suit against Bolton
When suit is filed in federal district court, the court uses federal rules and state substantive law.

The statute of limitations for a tort cause of action is a matter of state law and is generally two years.

Here, Perry sought to sue Bolton for a defective product just after the statute of limitations had run. Generally, Perry’s suit would be barred by the running of the statute of limitations.

Relation back doctrine. FRCP Rule 15 permits an amended complaint to add a defendant and relate the amendment back to the date of the filing of the original complaint for the purposes of avoiding the bar of the statute of limitations.

Here, Perry filed suit against Doctor for malpractice in the negligent insertion of the Bolton rod within the applicable statute. However, Perry learned after the statute of limitations had run that Bolton, the manufacturer of the rod was the cause of his pain when he read about newspaper accounts of other suits against Bolton.

FRCP Rule 15 (c) requires that the claim against the added party arose out of the same conduct, transaction or occurrence set forth in the original pleading and the newly named defendant knew or should have known that the action would have been brought against it, but for the plaintiff’s mistake concerning the proper party’s identity.

The question is whether Perry’s suit for Doctor’s lack of skill in inserting the Bolton rod, that is, an action for malpractice, is the same conduct as products liability against Bolton, the manufacturer of the defective rod.

It could be argued that Perry was not mistaken about the identity of the party, but about the theory. Perry thought the Doctor was negligent. He only later learned his theory should actually have been product liability for the device.

On the one hand, the theory against the Doctor is for lack of skill in surgery; a product liability claim is an entirely different theory and may not be part of the same conduct. On the other, the selection of the prosthesis is part of the surgical procedure, and the surgery is the same transaction about which Perry originally sued Doctor.

The U.S. Supreme Court recently held that permitting the amendment under Rule 15(c )(1)(c ) depends on what the party to be added knew or should have known, not on the amending party’s (the plaintiff’s) knowledge or timeliness in seeking to amend the pleading.

Bolton was aware of the other suits against it for its defective rod. So it had notice of the products liability defect, whether or not it knew specifically about Perry’s suit against Doctor. Other patients had sued Doctor over the Bolton rod, so it likely that Bolton was aware of all of these suits.

The Supreme Court recent ruling liberalizes adding defendants so long as the defendant added is not prejudiced. Even “cocktail party” knowledge of the plaintiff’s suit is sufficient to prove that the defendant had notice. The number of suits over this rod as well as suits against this Doctor for the rod is probably sufficient.

Furthermore, misconduct by Doctor prevented Perry from gaining the information as to the proper defendant before the statute of limitations ran. Doctor refused to answer a question concerning other surgeries involving the Bolton rod.

Admittedly, the court cannot order relation back as a sanction against Doctor for failing to answer a deposition question. But the court here would see the pattern of conduct of multiple lawsuits over the same rod, the Doctor continuing to use this rod despite past problems, and Bolton’s failure to take the rod off the market, despite knowledge of its defects.  In this light, Doctor’s lack of cooperation to allow Perry access to information relevant to the product liability looks particularly unfair to plaintiff. Clearly there is some sort of a business relationship between Doctor and Bolton. In these circumstances, the court is likely to find that Bolton had some notice of Perry’s suit and that Bolton is not prejudiced by being added as a defendant after the statute of limitations ran.

3 Summary judgment
Summary judgment is final judgment on the merits which is granted when there are no facts for the court to consider in deciding the case. Either there is no dispute between the plaintiff and defendant about the facts, or the party moving for summary judgment is asking the court to assume the facts presented by the opposing party are true for purposes of deciding the motion.

A summary judgment may completely dispose of a suit or it may be a partial summary judgment, disposing of an issue in the litigation.

Either party may move for a decision under summary judgment under res judicata. The moving party must prove the entire suit is precluded by a former court judgment.

Claim preclusion: res judicata
Res judicata requires:
1. identity of parties
2. final judgment on the merits
3. claim was litigated or should have been

Identity of parties.
In the prior litigation, another patient sued Doctor for malpractice. In this suit, Perry is suing Doctor. There is not an identity of parties between the prior litigation and this one. Therefore, the motion for summary judgment will not be granted based on res judicata.

Issue preclusion: collateral estoppel
Either party may move for a decision under partial summary judgment under collateral estoppel. The moving party must prove an issue in the litigation is precluded from relitigation by a former court judgment.

Collateral estoppel requires:
1. The party against whom collateral estoppel is asserted was a party in the first suit.
2. It involves the same issue of law or fact.
3. The issue was actually decided in the first suit and was necessary to the first judgment.

Party against whom
Doctor was a party in the suit by another patient and Doctor is a party in this suit. Perry is moving for preclusion against Doctor. Therefore, this is met.

Same issue
When the precise same act of the defendant was the subject of a previous suit, such as the defendant’s act of negligence in causing a car accident, then he can be precluded from relitigating it because it is identical to his conduct here.

Perry claims Doctor was negligent in inserting the rod. This theory would seem to depend on how the surgeon performed during one operation as compared to another. On one hand, surgery is a complex process that depends on the surgeon’s judgment on the state of the patient, his condition, the surgery itself and the patient’s compliance following surgery. It cannot be said that surgery on one patient is the same as surgery on another. Doctor cannot be precluded from litigating the facts in this case.

On the other hand, if Perry’s theory is solely that Doctor was negligent in selecting the Bolton rod, the issue is the same. Assuming that the theory is simply negligence in selecting this device, I will proceed with discussing the other elements.

Actually decided.
The other patient was suing Doctor for negligence in inserting a Bolton rod. The judgment in that suit had to be based on Doctor’s negligence. Therefore the issue of Doctor’s negligence was actually decided.

Necessary. The other patient was suing for damages for Doctor’s negligence. Therefore, the issue of Doctor’s negligence was necessary to the first suit.

Therefore all elements of collateral estoppel are met.

Collateral estoppel as a sword
When a plaintiff is asserting collateral estoppel against a defendant, he is asking the court to prevent the defendant from raising an issue necessary to his defense. Courts consider whether it is fair to preclude defendants from offering a defense. The court considers:

a. Was the defendant a defendant in the first suit?
When the party precluded was a defendant in both suits, it is less likely to be fair to permit such preclusion. Here, Doctor was a defendant in both suits, and this makes it less likely the court will grant collateral estoppel.

b. Is it an issue of fact? Courts as a matter of policy do not favor taking away the fact-finder’s ability to make factual determinations. When the issue sought to be precluded is factual, it also makes it less likely the court will grant collateral estoppel. Here, whether the Doctor was negligent in inserting the Bolton rod is a question of fact.

c. Is it a jury trial? The court is even more hesitant to take a factual matter away from a jury. While it is not known whether this is a jury trial, it is a suit for damages and could well be a jury trial. This would again disfavor granting collateral estoppel.Since it is unknown whether there is a jury, this factor is neutral.

d. Did plaintiff know about the first suit, and sit it out? If the plaintiff waited to see the outcome of another’s litigation, saving his resources and suing only when success seemed assured, courts look unfavorably on that and are less likely to grant collateral estoppel as a sword. Here, Perry did not know about the previous litigation and learned it only after he himself had sued Doctor. The court will not disfavor Perry’s motion based on this factor.

e. Did defendant have a greater stake in the current litigation than he did in the first suit? Where a defendant had little motive to put resources in his defense in the former trial but in this one he has more at risk, it would be unfair to deny the defendant his ability to defend. We do not know how severely injured the previous patients were. For example, if a former patient was suing because he is now paralyzed, Doctor would have a greater motivation to fully defend in that first suit. On the other hand, if the former patient was very old, had a complex of other painful health problems and did not lose income from the pain following surgery, then Doctor might have had less at stake in defending the former suit.

Two of the factors disfavor granting collateral estoppel as a sword. Defendant was the defendant in the first suit and the issue is a question of fact, Three factors are unknown or neutral. Plaintiff did not sit out the first suit. We do not know if it is a jury trial. We also do not know if defendant had the same motive to fully litigate.

Therefore, based on weighing the factors the court could decide either way.

In general, courts disfavor depriving a defendant of his ability to defend himself. It is done only in rare circumstances where the issues are complex and once the defendant’s negligence is proved it will be identical in every other suit.

Situations such as mass disasters have permitted a plaintiff to succeed in collateral estoppel as a sword. Here, how a Bolton rod is defective and the doctor’s knowledge about it is reasonably complex. Such scientific information is far more available to doctors than to the lay patients.

In order to foreclose Doctor, the previous suit would have to have decided that under no circumstances is it appropriate to use the defective Bolton and the selection of it was negligence. There are too many variables in surgeries on different patients to deprive the defendant from his ability to defend on the facts.

It is a close call, but I believe a court would exercise caution and would deny the plaintiff’s motion for partial summary judgment.

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