Civil Procedure Two
Final Examination
Prof. Slomanson
Spring 2013
Exam# _______
TABLE OF CONTENTS
Page
Instructions …............................................................................................................. 2
FILE
Complaint ……..………………………..................................................................... 3
Exhibit 1 ……………..……………………………………………………………... 3
Answer ........................................................................................................................ 4
Plaintiff’s Document Request ……………………………………………………… 5
Defendant’s Response/Objection ………..….……………………….……………… 5
Plaintiff’s Motion for New Trial ……………………………………………………. 6
LIBRARY
Case ………………………………………………………………………………… 7
Statute …………………………………………………………….………………… 7
Rules …….…………………………………………………………………………. 7
Page 1 of 22
Instructions
To: Job Applicant
Fm: Managing Partner
Re: Instructions
Date: May 14, 2013
We assess the ability of our job applicants to bridge the gap between law school and the
practicing bar, by having them do what lawyers do—read instructions, process documents, and
produce a reasoned analysis of a legal problem. This exercise has seven (7) pages total.
After reading this instructional memo, examine the FILE. It contains the litigation documents,
facts, and issues for this exercise. Please advise me on Issues #1 through #10 in the enclosed
FILE.
The enclosed LIBRARY contains resources, including a hypothetical case and statute that may
impact your analysis. These resources are not the only rules which may be applicable. Do not
assume that every scrap of information in this FILE and LIBRARY is relevant to some issue.
If there are two sides to an issue, you should address the respective arguments. But do give me
your reasoned conclusion on each issue. Use whatever format you wish to provide your response.
Good luck,
Atticus Finch
Managing Partner
Page 2 of 22
FILE
Luke Travolta , Plaintiff,
)
an individual
)
v.
)
Grace Industries, Defendant, )
a corporation
)
United States District Court
for the District of Massachusetts
Civil Action No. 654321-SOB
COMPLAINT
1. Plaintiff resides in the city of Woburn, and is domiciled in the state of Massachusetts.
2. Defendant is a Vermont corporation, with its nerve center in Boston, Massachusetts.
3. Plaintiff was diagnosed with Leukemia in 2011, along with a statistically significant
number of other people in the Woburn area between 2000 and the present.
4. The defendant violated Section 13 of the Emergency Environmental Protection Act
(EEPA). As a result, Grace’s hazardous waste facility in Bennington, Vermont was shut
down by the Environmental Protection Agency (EPA) in 2011.
5. Plaintiff requests that this court take judicial notice of the closure order in EPA v.
Grace Industries—a copy of which is attached to this complaint as Exhibit 1. That decision
indicates that Grace Industries is responsible for Luke Travolta’s leukemia.
6. Wherefore plaintiff seeks damages of $70,000.00, for his combined out-of-pocket
costs, plus his physical and emotional pain and suffering.
Signed: Jumpin’ Jack Flash
Dewey, Cheatem, Bilkem & Howe
Attorneys for Plaintiff
Exhibit 1: Decision #2011-231—EPA v. Grace Industries
1. In the matter of United States Environmental Protection Agency v. Grace Industries,
Agency Determination 2011-321, be it known that Grace Industries is hereby ordered to
close its Bennington, Vermont waste facility forthwith. This decision is premised upon the
Agency’s findings regarding Grace’s Ratzaflatzapackalumer River Facility, which flows in
a southerly direction from Vermont into Massachusetts. Hazardous waste had been found,
for many years, in that river—specifically in the leg between Bennington, Vermont and
Woburn, Massachusetts.
2. This action is predicated upon Grace Industries’ repeated failures to properly
maintain records regarding all hazardous waste at its Vermont facility, where it treated,
stored, and disposed of such waste.
Signed: Yolanda Valladolid
Environmental Protection Agency
Administrative Law Judge
Page 3 of 22
Luke Travolta , Plaintiff,
)
an individual
)
v.
)
Grace Industries, Defendant, )
a corporation
)
United States District Court
for the District of Massachusetts
Civil Action No. 654321-SOB
ANSWER
ANSWER
1. Defendant Grace Industries hereby appears in the above-captioned action.
2. Defendant denies Luke Travolta’s complaint in its entirety.
AFFIRMATIVE DEFENSES
3. The court does not have subject matter jurisdiction over this claim.
4. The court does not have in personam jurisdiction over this defendant—whose only waste
management operations were: (a) in Vermont; and (b) closed in 2011.
5. The court should disregard Exhibit 1 to plaintiff’s complaint, which established nothing for
the purposes of this lawsuit.
6. WHEREFORE, this defendant prays that the plaintiff obtain no relief in this action, and that
defendant be awarded costs of suit, should the defendant prevail at trial.
Signed: Nancy Grace
Last, Hope & Chance
Attorneys for Defendant
Question #1: Does the court have subject matter jurisdiction over this case?
Question #2: Does the court have in personam jurisdiction over the defendant?
Question #3: Does the earlier decision by the Environmental Protection Agency (EPA) have any
impact on this subsequent lawsuit?
Question #4: Assume the trial judge refuses to apply the EPA decision to this court case. Can
Luke now obtain appellate review of the trial judge’s refusal?
Question #5: Is Luke entitled to a jury trial? (Do not discuss administrative adjudication.)
Question #6: Is Grace Industries entitled to a mental examination of Luke Travolta?
Page 4 of 22
More Facts/Documents: Now assume the court decides that it has IPJ and SMJ; that the prior
administrative adjudication has no impact on this current suit; and the case is now in the
discovery stage. Luke’s lawyer files the following request:
Luke Travolta , Plaintiff,
)
an individual
)
v.
)
Grace Industries, Defendant, )
a corporation
)
United States District Court
for the District of Massachusetts
Civil Action No. 654321-SOB
PLAINTIFF’S REQUEST FOR
PRODUCTION OF DOCUMENTS
Plaintiff Luke Travolta hereby requests Grace Industries to produce all print and
electronic documents it possesses, which are relevant to the quality of the
Ratzaflatzapackalumer River—between its Bennington, Vermont waste disposal facility and
the city of Woburn, Massachusetts—during the time that Grace operated that facility.
Signed: Jumpin’ Jack Flash
Dewey, Cheatem, Bilkem & Howe
Attorneys for Plaintiff
The defense responds to the above request as follows:
Luke Travolta , Plaintiff,
)
an individual
)
v.
)
Grace Industries, Defendant, )
a corporation
)
United States District Court
for the District of Massachusetts
Civil Action No. 654321-SOB
DEFENDANT’S RESPONSE AND
OBJECTION TO PLAINTIFF’S
DOCUMENT REQUEST
1. Defendant Grace Industries is unable to produce any print documents for the times
and locations requested. It no longer has such print documents, having destroyed them
shortly after the EPA closure decision.
2. Defendant Grace Industries objects to plaintiff’s electronic production request. Grace
has numerous electronic files. However, none of them are readily accessible. Grace would
have to hire an information technology firm to create a program to retrieve e-mails and
other corporate documents that now reside only on Grace’s backup tapes—which have
never before been accessed.
Signed: Nancy Grace
Last, Hope & Chance
Attorneys for Defendant
Question #7: How should the court rule on the defendant’s objection to plaintiff’s request for the
company’s documents?
Page 5 of 22
More Facts/Document: In his initial core disclosures, plaintiff identified Bennington, Vermont
residents Alex and Ben as fact witnesses. They live near Grace’s waste disposal facility on the
Ratzaflatzapackalumer River in Vermont. They supposedly witnessed Grace Industry employees
dumping from large drums, filled with liquid, directly into the river, over a period of years before
Grace’s disposal facility closed. Luke’s Lawyer Jack interviewed them before Luke filed his suit
against Grace Industries. Grace’s lawyer Nancy then sends Jack a request for production of Alex
and Ben’s witness statements, which are relevant and admissible.
Question #8: Does Jack have to give (a copy of) Alex and Ben’s statements to Nancy?
The case goes to trial. Jack’s first three witnesses are Bennington neighbors Alex, Ben, and
Christina. Nancy objects to Christina being able to testify at this trial, about her observations of
Grace’s waste disposal facility.
Question #9: How should the judge rule on Nancy’s objection to Christina testifying?
The trial evidence focuses on causation—specifically, whether Grace Industry’s waste disposal
facility operation was responsible for Luke’s leukemia. The court gives instructions on: duty,
breach, causation, damages, and the statute of limitations. The jury holds for defendant Grace
Industries.
Jack timely files the following document after trial:
Luke Travolta , Plaintiff,
)
an individual
)
v.
)
Grace Industries, Defendant, )
a corporation
)
United States District Court
for the District of Massachusetts
Civil Action No. 654321-SOB
PAINTIFF’S MOTION FOR
NEW TRIAL
Plaintiff Luke Travolta hereby moves the court for a new trial. The trial court’s
instructional error prejudiced Luke Travolta’s case.
***
Signed: Jumpin’ Jack Flash
Dewey, Cheatem, Bilkem & Howe
Attorneys for Plaintiff
Question #10: [a] Is the court responsible for instructional error?
[b] Should the court grant plaintiff’s new trial motion?
Page 6 of 22
LIBRARY
Case
Yahoody v. Caddittlehopper
1111 U.S. 2222 (U.S. Supreme Court)
***
The Emergency Environmental Protection Act (EEPA) establishes a broad national
framework for protecting our environment. The EEPA’s policy is to assure that all branches of
government give proper consideration to the environment, prior to undertaking any major federal
action that could significantly affect the environment.
Its provisions also accord private attorney general status to plaintiffs, who may thus file
their own private claims against interstate polluters.
Finally, to fully embrace the Act’s underlying policies, federal agency decisions,
determined as a result of EEPA investigations, are entitled to the same deference enjoyed by
federal judicial decisions interpreting the EEPA.
***
Statute
1313 U.S.C. §13. Emergency Environmental Protection Act
Such entities shall maintain records of all hazardous waste which is treated, stored, or
disposed of, and the manner in which such waste is treated, stored, or disposed of. Failure to do
so may result in various agency enforcement actions. Sanctions include the imposition of fines to
cessation of operations, as determined by the agency’s administrative law judges.
Federal Rules of Civil Procedure
Rule 50. Judgment as a Matter of Law in a Jury Trial
***
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court
does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is
considered to have submitted the action to the jury subject to the court’s later deciding the legal
questions raised by the motion. * * * [T]he movant may file a renewed motion for judgment as a
matter of law and may include an alternative or joint request for a new trial under Rule 59. In
ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Rule 59. New Trial
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of
the issues—and to any party—as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted
in an action at law in federal court * * * .
Page 7 of 22
Prof’s Issue Outline Spr 2013 CP II Final Exam [“@” = complaint & “ ±” = not]
[1] SMJ
Diversity
* Dom & min amt
* Luke dom MA
* Grace = inc + PPB
* corp dom = nerve center (Hertz)
* Grace dom = MA nerve center (@¶2)
* amt only 70k (time of filing)
Fed Quest
* case arising §13 EEPA * Ds cond w/i statute?
* no min amt
Elements—* maintain records * interst pollutn
* ALJ Exhibit 1 repeated failure keep records
* EEPA authorizes private claim
[2] IPJ
* Minimum contacts…
Answer: * waste ops outside forum
* closed two yrs ago
P counter: * general IPJ * GI forum dom
* Ratz River flows fm D plant to P city
* arose in forum
* foreseeable southerly flow VT
[3] Prior Adjudication
RJ: * element: can’t split claim
* action1 & action2 = diff Ps * does not = split
CE: * action1 admin decision preclusive effect?
* Yahoody: “agency decision same weight”
* key elements: id issue, actually litigated
* issue decided action1: failure maintain records
* admin action not decide dumping liability/causa
* action1 thus no preclusive effect action2
[4] Pre-judgment Appellate Review
* gist piecemeal review v. too important to delay
* 54b?
* “disposition” on merits?
* fail keep records ± dispo on merits
* collateral order?
* not a determination of merits; but
* SCt stingy, unless post-jmt rev eff’ly unavail
* 1292b joint discretion review? * elements
* preferred method
* refusal apply action1 ± control Q (fail keep rcds)
* writ?
* NARLy
* ± extraordinary decision
[5] Right Jury
* 7th Amendment jury TOF when $ damages
* but must request in pleadings * @ ± so request
* judge can waive waiver
[6] Mental Examination
* privacy gist
* elements: in contro & good cause
* greater scrutiny mental exam
* P @ ¶6(a): “emotional pain and suffering”
* garden variety PI P & S allegation
* ± mental exam, absent IIED/related theory
* no purse-choosing mental condition alleged
[7] Document Request
* Doc request w/i scope discovery
* relevant to downstream water quality
* §13 shall maintain records
* routine print doc destruction ok
* GI closed lack records / says destroyed
* ESI default rule: party asked produces
* unless not readily accessible
* if not, G produces at L’s expense
[8] Work Product
* gist WP
* Jack’s efforts produced those file docs
* pre-filing creation “in anticipation” qualifies
* Nancy is raiding Jack’s files (Hickman)
* exception substantial need
* Nancy can obtain subst equiv: A & B’s depos
* travel nearby state VT ± hardship
[9] Christina’s Testimony
* Gist initial core disclosures
* A & B identified, but not Christina
* Jack not supplement Luke’s core disclosures
* Judge bar surprise testimony
-----------------------------------------------------------[10] [a] Instructions
* Based on trial evidence
* SOL not plead as affirm defense
* trial “focuses exclusively on causation”
* jury holds for Grace Industries
* absence SOL evidence = error
[b] New Trial
* gist discretion
* judge may correct trial error (v. later reversal)
* error prejudicial b/c jury might have based SOL
Page 8 of 22
Sample Student Answer (does not include prof’s comments)
1)
1. Subject Matter Jurisdiction
A court has subject matter jurisdiction through several ways. These ways include a case arising
under a treaty, a case arising under a federal statute and the final avenue being diversity.
Federal Question
To determine whether a court has SMJ over a case, it must be determined whether the
defendant's conduct falls within the statute.
Here, the statute at issue is the Emergency Environmental Protection Act designed to protect the
environment. It requires entities that dispose of hazardous waste, keep records of all the
hazardous waste that is treated, stored or disposed of and the manner in which it is treated,stored,
and disposed of. If the entities do not do this, the agency may sanction the entity or cease their
operations. Exhibit 1 states that Grace Industries failed to properly maintain their records
regarding all hazardous waste at its Vermont facility where it treated,stored and disposed of this
waste. This conduct of not keeping records regarding the hazardous waste is exactly the conduct
that the EEPA sought to protect the environment from. In addition, Yahoody v. Caddittlehopper
establishes that plaintiffs can bring their own claims against interstate polluters. Grace Industries'
hazardous waste is traveling in the river from Vermont to Massachusetts. This is the exact
situation that the statute is describing.
Therefore, the District Court of Massachusetts has SMJ over this case because Grace Industries'
conduct falls under a federal statute.
Diversity
In order for a court to have SMJ based on diversity the plaintiff and the defendant must not be
domiciled in the same state and the amount in controversy must be more than $75,000.
An individual's domicile is determined by their presence in the forum with the intent to remain
there. A corporation's domicile is in two places. The first being where they were incorporated
and the second being where their principal place of business is, determined by the nerve center
test. The nerve center test analyzes where the central decision making location is.
Here, Luke Travolta is resides in the city of Woburn, but is domiciled in the state of
Massachusetts as listed in the complaint. Grace Industries is incorporated in Vermont, where the
cause of action took place and their nerve center is in Boston, Massachusetts as listed in the
complaint. Luke and Grace Industries are domiciled in the same state because Luke is domiciled
in Massachusetts and Grace Industries' ppb of business determined by the nerve center is also in
Massachusetts. In addition, the damages that have been plead are only $70,000. This could be
overcome if it cannot be said that to a legal certainty it is not possible for the jurisdictional
amount to be satisfied. Here, Luke seeks damages for his out of pocket costs and also physical
Page 9 of 22
and emotion pain and suffering. It cannot be said to a legal certaintiy that these would not go
beyond the $70,000 plead. However, diversity jurisdiction fails anyways because both the
plaintiff and the defendant are domiciled in Massachusetts.
Therefore, the court has SMJ over Grace Industries through federal question, but not diversity.
2. In personam jurisdiction
In personam jursidiction deals with a states' power over the people in it. IPJ determines whether
it is fair to require the Defendant to litigate in the forum that was chosen. IPJ consists of an ever
evolving set of principles that determine whether a court has IPJ over a party. These principles
include minimum contacts, purposeful availment, and reasonably anticipate. General jurisdiction
is when the defendant's contacts with the forum are so continuous and systematic, that they
should be required to litigate in the forum. Specific jurisdiction deals with the defendant's
contacts with the forum that are few and sporatoric, however, the cause of action arose in the
forum from their contacts and so this provides the court with IPJ.
Minimum Contacts
Minimum contacts requires the defendant to have at least minimum contacts with the forum to
make it fair to require the defendant to litigate in this forum, here, Massachusetts.
Here, Grace Industries' principal place of business is in Massachusetts, the forum that Luke
chose to litigate this case in. Although the cause of action seeemingly arose in Vermont through
their Vermont plant, Grace Industries conducts the principal amount of their business in
Massachusetts. In addition, Luke was exposed to the hazardouse waste in Massachusetts because
it flowed down the river. General jurisdiction exists when a defendant's contacts are so systemic
and continous that they should be required to litigate in the forum. This is the case here. Grace
Industries does much of their business in Massachusetts and has a lot of contact with the state.
In addition, the cause of action althought it arose in Vermont because the hazardous waste was
not recorded by that plant, it flowed down the river to Massachusetts. This is where Luke
Travolta arguably was subjected to this hazardous waste. The cause of action arose through
Luke's contracting leukemia which happened in Massachusetts. Even though Grace industries
argues that they only operated in Vermont and they were closed in 2011, Luke was diagnosed in
2011 with no significant time in between their closing and his cause of action. The Vermo t
facility did not close before Luke was diaagnosed.
Therefore, Grace Industries likely has enough contacts with Massachusetts for them to litigate
here.
Purposeful Availment
Purposeful availment requires that a defendant have availed themselves of benefits and
protection of the laws in the forum state in order to litigate there.
Page 10 of 22
Here, this is the case. Grace industries set up their ppb in Massachusetts. They derived business
from this location so they were benefitting from being in the forum an also benefitting from the
protection of their laws, esepcially for their company. They deliberately chose to set up shop in
Massachusetts even though they were incorporated in Vermont.
Therefore, Grace Industries also purposeful availed themselves of the benefits of the forum.
Reasonably Anticipated
Reasonably anticipating requires the defendant to reasonably anticipate being haled into the
forum for litigation because of their contacts.
Here, Grace Industries set up their ppb in Massachusetts. They make decisions in
Massachusetts, interact with the community, and provide services. With these transactions
occurring, it is reasonable for them to anticipate being haled into the forum due to a problem
with their services or a client. Most business have common issues that occur and they occur in
the states that they do business and provide services.
Therefore, Grace Industries could reasoanbly anticipate being haled into the forum because they
do business there and could anticipate conflicts that might require litigation.
Therefore, the court has IPJ over Grace Industries based on minimum contacts, purposeful
availment, and reasonable anticipation.
3. Res Judicata/Collateral Estoppel
A prior suit can have an effect on a later suit in two different ways. These ways include res
judicata, known as claim preculsion and collateral estoppel known as issue preclusion
Res Judicata
Res Judicata deals with the Eleventh Amendment, thou shall not split thy claim. The common
law view was to look at the primary rights that stemmed from the situation, however, the modern
view deals with looking at the wrong of the defendant. A plaintiff must assert all rights that stem
from the wrong of a defendant in the same suit. Otherwise, the other rights will be merged in the
suit and the plaintiff will not be able to litigate on them.
Here, there are two different plaintiffs in the two suits. The first suit is by the EPA against Grace
Industries and the second suit is by Luke Travolta against Grace Industries. Every plaintiff has a
distinct claim and so this does not seem to be a res judicata situation. The EPA is free to bring
their claim against the defendant for violating the EEPA and Luke is able to assert his rights
against Grace Industries for his leukemia. In addition, they are both different causes of action.
Luke is suing because he alleges that Grace Industries caused his leukemia, but the EPA is
alleging that t Grace Industries violated EEPA because they did not mai ntain their records.
Therefore, res judicata does not apply and this does not bar suit #2.
Page 11 of 22
Collateral Estoppel
Collateral Estoppel is also known as issue preclusion. For collateral estoppel to apply, there
must be 1. identical issue, 2. actually litigated, and 3. necessarily decided. Collateral estoppel can
be applied offensively or defensively, however, it cannot be applied against someone that was
not a party to the prior suit because they are not bound by the judgment.
Identical Issue
Collateral estoppel requires the identical issue to be present in both suit #1 and suit #2.
Here, the issue in suit #1 is whether Grace Industries maintained records on how they treated,
stored and disposed of the hazardous waste that they held at the Vermont Facility. The issue in
suit #2 deals with whether the hazardous waste from Grace Industries caused Luke's leukemia.
This does not seem to be the identical issue. One is deal with record keeping and the other is
dealing with whether hazardous waste caused leukemia in the plaintiff. There seems to be
different facts that will be relevant to each claim. With the record keeping, they will be
concerned with the file cabinets, asking employees how they tracked the hazardous waste,
whether they kept records daily, etc. For Luke's claim, it will be important to know if the waste
was in the water that Luke and the other individuals drank, or whether if flowed all the way
down to Woburn.
Therefore, these suits present 2 different issues to decide and collateral estoppel cannot be
applied.
Actually Litigated
If the court did find that there was an identical issue, the issue would need to have been actually
litigated.
Here, it is not clear whether the case was actually litigated. It states that the closure was based
on the agency's findings that the hazardous waste was found in the river, however, it does not say
that Grace Industries was able to rebut these findings in litigation. Nothing in exhibit one state
that Grace Industries had their day in court with the EPA. It merely says that the agency's
findings justified their closure of the Vermony facility. If an issue is not actually litigated,
collateral estoppel cannot apply.
Therefore, because it is not clear that Grace Industries was able to actually litigate this issue
against the EPA, collateral estoppel does not apply.
Necessarily Decided
In addition to the other elements, the issue must have necesarily been decided meaning that the
judgment must have been necessary.
Page 12 of 22
Here, even if Grace Industries did not maintain their records regarding the hazardouse waste,
this does not necessarily mean that they are responsible for Luke being diagnosed with
Leukemia. There are a variety of other reasons that Luke could have been diagnosed with this
disease. However, failing to maintain records does not automatically indicate liability on the part
of Grace Industries for Luke's illness.
Therefore, the issue of Grace Industries' liability as it relates to Luke was not necessarily
decided.
Offensive CE
The plaintiff can attempt to use collateral estoppel offensively in order to prevent re-litigating
the same issue over and over. It can be used against party that was a party to the prior suit and
bound by the judgment.
Here, this is what Luke is trying to do. He is trying to establish that the EPA decision
established that Grace Industries caused his leukemia, however, this is not the case. The prior
suit merely established that they did not maintain their records and that hazardous waste got into
the river. This does not necessarily establish that this caused Luke's disease.
Therefore, Luke cannot use collateral estoppel offensively.
Defensive CE
At times a defendant may try to use collateral estoppel defensively where there was a prior suit
that found in their favor.
Heree, that is not the case. In the EPA case, they actually closed the Vermont facility and their
findings were based on the fact that hazardouse materials made their way into the river. The EPA
case if applied to the current suit would actually strengthen Luke's case because there was an
administrative finding that hazardous waste was in the riv er that went to Massachusetts. Howe
ver, Luke was not a party to tthe prior suit and collateral estoppel cannot be used against a party
that was not bound by the prior judgment. Luke was a str anger to suit #2 and so this could not be
used.
Therefore, Grace Industries cannot use the prior suit with the EPA even if they wanted to
because Luke was not a party to that suit.
Conclusion
Therefore, because res judicata does not apply because every plaintiff has a distinct cause of
action and because collateral estoppel does not apply since the elements are not met, suit #1 does
not preclude suit #2 from being brought.
4. Appellate Review - Pre-Final Judgment
Page 13 of 22
A plaintiff or defendant can receive appellate review through a variety of avenues. Some of the
avenues trigger automatic appellate jurisdiction and some require the discretion of the trial court,
the appellate court, or both. Appellate review prior to final judgment has its pros and cons. The
argument for it is that an order to too important to be denied immediate review. The argument
against is that the court militates against piecemeal reviews because they do not want the
financially able individual to wage a war on both fronts (trial court and the appellate court). First
it must be determined whether the decision is collateral or on the merits.
Collateral
A collateral order is one that is collateral to the merits. This includes contempt and injunctions.
The court is very stingy about applying this to cases because it triggers automatic appellate
review.
Here, the decision deals with applying a prior suit to the current suit. This is not deciding the
case on the merits because the court is not deciding that Grace Industries is actually liable with
respect to Luke. They are merely stating that the suit #2 can be brought because it is not
precluded by either res judicata or collateral estoppel. However, it is very hard to qualify as a
collateral order under Cohen so the party should seek other alternatives to gain appellate review.
Since the order is collateral to the merits, 54b does not come into play which requires a
disposition of one or more, but less than all of the substantive claims. This requires the trial
court's discretion and they must certify the case before the appellate court can review it.
Therefore, the defendant should seek other avenues to get appellate review because the Cohen
standard is so stringent.
Interlocutory Appeals
All pre-final judgment decisions could be considered interlocutory because they are all prior to
final judgment. In order to trigger this avenue, three elements must be met;1. controlling
question of law, 2. substantial ground for difference of opinion and 3. immediate review...may
materially advance the ultimate termination of the case. Interlocutory appeals require the
discretion of both the trial judge and the appellate judge.
Controlling Question of Law
Controlling question of law means that the decision must have been on a major element of the
case.
Here, the major element of Luke's case is causation. Luke is alledging that Grace Industries
caused his leukemia because their hazardous waste got in the water that flowed to Woburn. The
prior decision merely decided that Grace Industries was not maintaining their records on the
waste and that waste had been seen in the river, however, not that this caused Luke's leukemia.
The major element in Luke's case is whether Grace Industries caused Luke's leukemia and this
was not the issue decided. The issue decided here was whether the case regarding the EPA could
be used as deciding Grace Industries' liability, however, the prior case did not decide this issue.
Page 14 of 22
Substantial ground for difference of opinion
Interlocutory appeals require that there be substantial ground for difference of opinion which
shows the need for clarity. This exists when there is judicial conflict on the subject.
Here, deciding whether to apply a prior suit to a current suit is very common for the courts. Res
judicata and collateral estoppel show their face all the time with different parties attempting to
get out of the litigation. The courts are all clear on how to apply res judicata and collateral
estoppel and when a case has an effect on a later suit. This area of the law is clear and so there is
not need to clear anything up. There seems to be no difference of opinion when it comes to the
effect that a suit will have on a later suit.
Therefore, there is also no substantial ground for difference of opinion.
Immediate Review may Materially Advance the Ultimate Conclusion of the Case
This means that the court will know whether the case will settle for millions or for peanuts
within 5 minutes after the appellate court reviews the issue and decides.
Here, this is not the case. Even if the EPA suit does apply, the court will still have to determine
whether this is what caused Luke's leukemia. Merely failing to maintain records does not
automatically translate into causation of a disease. Both sides will still need to go through their
respective arguments to determine if the Grace Industries was actually liable for Luke's leukemia
because they were the cause. The prior case merely makes Grace Industries liable for failing to
comply with the EEPA statute.
Therefore, a decision regarding whether to apply the EPA case would not materially advance the
ultimate conclusion of the case. The issue of causation would still need to be decided and
damages determined.
Conclusion
Since the decision is not on a controlling question of law, and there is no substantial ground for
different of opinion, and it would not materially advance the ultimate conclusion, appellate
review is not trigged through the interlocutory appeal avenue. Even though nothing in the facts
suggest that the trial judge would say no, the decision cannot trigger appellate review through
this avenue.
Writs
The writ power is only exercised in extraordinary circumstances. This occurs when there is no
adequate remedy at law. Appeal by writ is a form of equitable remedy because no legal remedies
are available for the case. The idea is that a decision in which the judge fails to property act
should be remedied.
Page 15 of 22
Here, determining whether res judicata or collateral estoppel applies and whether to apply a
previous decision to the current court case is a mundane activity and one that is common. Res
judicata and collateral estoppel are plead as affirmative defenses in many cases and the court
deals with these areas all the time. Writ power is only used in extraordinary circumstances under
the appellate discretion, although there are no clear standards.
Therefore, it is unlikely that Luke can trigger appellate review through writ because this is not
an extraordinary situation.
Conclusion
It is likely that Luke will be unable to trigger appellate jurisdiction through any of the available
avenues.
5. Jury Trial
The right to a jury trial is not automatic. It must be plead and if it is not plead, it will be waived.
The court however has the discretion to give a jury trial. A jury is the trier of fact when money
damages are sought. When equitable remedies are sought, such as specific performance, the
judge is the trier of fact. The common scenarior that presents a problem is when the factfinding
function of the judge and jury overlap because both equitable remedies and money damages have
been sought. This is not the case here.
Here, Luke is requesting money damages of $70,000 for his out of pocket expenses and also his
physical and emotional pain and suffering. Luke has not asked for any equitable remedies such
as specific performance or an injuction. In fact, the EPA suit already required Grace Industries to
shut down their Vermont plant, so Luke did not have to ask for this in his complaint. He is only
seeking money damages. In a money damage case, the jury is the trier of fact. They should
determine the facts and whether Luke is entitled to damages as he plead in his complaint.
Therefore, Luke does have a right to a jury trial because he requested money damages as his
relief.
6. Mental Examination
Eaminations are a discovery device that can be used to discover information relevant to the case.
Mental and physical examinations are comparatively intrusive discovery devices and so the
requesting party must show that the party's condition is in controversy and there must be good
cause for a particular type of examination.
In Controversy
The requested party's condition must be in controversy. It must be in controversy in order to
protect the privary rights of individuals. A party that sues for damages based on their condition
chooses the purse over their privacy rights, however, if someone does not put their condition in
controversy, it is an uphill battle.
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Here, Luke is suing Grace Industries because he says they caused him to be diagnosed with
leukemia due to their hazardous waste reaching him and affecting him. This is a physical
condition and he is not mentioning anything about his mental condition due to this situation. It
would be reasonable to request a physical examination because Luke is suing due to his physical
condition so he is putting it in controversy. Luke sues for damages for his emotional pain and
suffering. It can be argued that because Luke is asking for damages based on his emotional pain
and suffering, this deals with his mental status. However, this is a weak argument. Anyone that is
diagnosed with leukemia will be very upset, but this does not indicate any sort of mental
problems whatsoever.
Therefore, Luke has not placed his mental condition in controversy, only his physical condition.
Good Cause
In order to allow an examination, there must be good cause for the particular examination since
examinations are relatively intrusive.
Here, Grace Industries seeks a mental examination for what seems like no reason. Luke is suing
based on his physical condition and his mental condition has never been mentioned besides
stating that he suffered emotional pain and suffering from the whole ordeal. A mental
examination may reveal very personal things about Luke that he might not want others to know.
There is no reason for this type of examination in this case because Luke's mental condition has
not come up until now. Grace Industries may argue that Luke wants money damages because of
his emotional suffering which has an impact on his mental condition, however, it is unlikely this
argument will be successful. Many people suffer emotionally in situations and this does not
affect their mental condition.
Therefore, Grace Industries does not have good cause for this examination because nothing in
the facts suggest that Luke's mental condition has been an issue or debated.
Conclusion
Therefore, Grace Industries does not have good cause for the mental examination and Luke's
mental condition has never been in controversy besides this request. Grace Industries is not
entitled to a mental examination of Luke.
7. Core Discovery/Production of Documents
Core discovery requires the parties to exchange certain information without judicial
interference. This stage of discovery is self-initiated and includes producing 1. fact witnesses, 2.
relevant documents, 3. P's computation of damages, and 4. D's insurance coverage. The scope of
discovery is broader than during trial because there is no jury present to here the questions and
answers and because there is a penchant for the mutual exchange of information. The parties can
inquire into anything that is not privileged, relevant to a claim or defense of any party and
admissible or reasonably calculated to lead to admissible evidence.
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Relevant Documents/Production of Documents
Parties may seek documents, property or to enter onto property to discover information relevant
to the case. A non-party cannot be compelled to produce documents, however documents that are
in the effective "possession, control or custody" of the person may have to be turned over by
another person. This is the case with corporations that hold the documents. The documents will
stil have to be produced.
Here, the issue is regarding relevant documents that speak to the quality of the river water that
may have had hazardous waste in it. These documents should have been produced during core
discovery because they are documents that are relevant to the claim that Luke has. For
production of documents, the requested party has the option to produce business records. This
occurs when a party inquires into something that is within the scope of discovery, but requires a
considerable amount of effort and expense. As long as the burden of getting this documents is
roughly the same for both parties, the requested party will bear the cost of producing them.
The corporation will still have to turn over the documents even if they are not readily accessible.
The corporation cannot circumvent the discovery process simply because it will take time and
effort to retrieve the documents and information. Either party to retrieve this information is going
to have to hire an information technology firm to retrieve the emails and corporate documents.
There is no other way to get this information and it is needed for the suit. The cost to either party
to obtain these documents will be roughly the same. The only way the court will shift the costs is
if Luke is requesting these documents without good faith just to cost Grace Industries time and
money, however, this does not seem to be the case.
Relevant to Claim/Defense
In order to fall under the scope of discovery, the documents requested must be relevant to the
claim/defense of any party. In addition, if the inquiry is into something it falls within the subject
matter, this can still be obtained with a showing of good cause.
Here, the documents sought go to the quality of the river that runs from Vermony to
Massachusetts. This is relevant to Luke's claim because he claims the hazardous waste from
Grace industries' Vermont plant got into the river and flowed down to Massachusetts. His claim
is that this caused him to contract leukemia. The quality of the water may speak to whether it
was contaminated or not and could lead to determining whether this was the same water that
Luke drank that caused the leukemia. It may establish that the water is in fact what caused Luke's
leukemia and not some other alternative.
Therefore, the requested documents are relevant to the case because they go directly to Luke's
claim for how he was infected.
Privilege
In addition, inquiries cannot be made into things that are privileged. Attorney work product
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privilege is absolute. Consultant work is qualified.
Here, these are normal business records that were not prepared in anticipation of litigation. They
were kept during the time that Grace maintained the Vermont facility and was likely relevant to
them conducting their business. Grace Industries likely had to keep these documents for
inspections that may be done by the EPA or by other investigations whereby Grace needs to
ensure that they are maintaining their facility in the correct manner.
Therefore, privilege is not an issue here.
Admissible
The documents or information must be admissible or reasonably calculated to lead to admissible
evidence.
Here, the documents sought are business records. These are regulary admissible in court because
they are kept in the normal course of business routinely. They are also reasonably calculated to
lead to admissible evidence because they could lead to other people that drank the water and got
sick or fact witness that may know about the condition of the water. In addition, they could lead
to other defendants that may be responsible for not doing anything about the water quality if they
knew about it.
Therefore, these documents are admissible and reasonably calculated to lead to other admissible
evidence as well.
Conclusion
The documents are relevant to Luke's claim regarding the cause of his leukemia. They are not
privileged and could also lead to other admissible evidence. Therefore, the court should overrule
the defendant's objection to the plaintiff's request.
8. Work Product/Privilege
A party cannot receive information that is privileged. An attorney's work product is protected by
absolute privilege. A consultant or fact witness' information is qualified or conditional. A
consultant is one that helps with the technical aspects of the case and helps to analyze it in
preparation for litigation. Fact witness are those that observed an occurrence relevant to the case
with their five senses. Work prepared in preparation for litigation has conditional protection. In
order to pierce the conditional protection, a party must show substantial need and that they are
unable without undue hardship to obtain the substantial equivalent through other means. The
privilege rules protect against lazy lawyers who sit back and wait until the other side does all the
work and then tries to raid the opposing sides files without working for the information.
Here, Luke's lawyer has taken the statements of Ben and Alex, two fact witnesses that live near
the Vermony facility and witnessed Grace Industry employees dumping large drums filled with
liquid into the river. Luke's lawyer took Alex and Ben's statements before Luke filed his suit
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against Grace Industries, which means he took their statements in preparation for litigation.
Although Alex and Ben's statements are relevant and admissible, they are conditionally protected
because Luke's lawyer went through the effort to obtain them in preparation for litigatin. Nancy
cannot obtain these statements unless she shows substantial need and that she is unable without
undue hardship to obtain them through other means.
Substantial Need
Here, Nancy has substantial need in obtaining this information because she needs to know how
their information is going to affect her case. She needs to know what they saw and exactly what
the know about the drums that were dumped into the river. These witnesses live near the waste
disposal facility and they have seen much of what goes on at the Vermont plant. Their
information could potentially destroy Nancy's case. She needs their information to prepare a
defense or to actually figure out how much they saw and who they saw dumping into the river.
Therefore, Nancy has substantial need in obtaining Alex and Ben's statements.
Unable to Obtain Equivalent
Nancy must also show that she is unable without undue hardship to obtain the substantial
equivalent through other means.
Here, Nancy would like the copy of Alex and Ben's statements that were taken by Luke's
lawyer. Nothing in the facts indicate that Alex and Ben are not available for Nancy to talk to.
Nancy could find these witnesses herself and take her own statement instead of trying to the
statements from Luke's lawyer without doing any work. This element would be satisfied if Ben
and Alex had died or if they were beyond the reach of the court because then Nancy would not
be able to get their statement and she could not get the information. However, this is not the case.
Nothing in the facts state that Ben and Alex have gone anywhere and it is likely they still live in
the same location. Nancy is free to find these witnesses and ask her own questions to compile her
own statements for her case.
Therefore, Nancy could easily obtain the equivalent of the information that Luke's lawyer has.
Conclusion
Nancy does have a substantial need in obtaining the information that these fact witnesses have
and that Luke's lawyer recorded, however, she could easily obtain their statements herself. There
is nothing to indicate that they are no longer available and so therefore, Jack does not have to
give a copy of Alex and Ben's statements to Nancy.
9. Supplementation
Core discovery requires each side to disclose to their opponents the fact witnesses that they
intend to use at trial. This is so there is no surprise at trial as to new information or new
witnesses testifying. In addition, each side is required to amend their automatic disclosures or
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their responses when they become incomplete or incorrect. The court has the explicit power to
punish those that fail to do this. Generally, if fact witnesses are not identified in core discovery
or during supplementation, they are not permitted to testify.
Here, Jack identifies Alex and Ben as his fact witnesses that will testify at trial. He takes their
statements in order to prepare. However, at trial Jack's first three witnesses are Alex, Ben and
Christina. Christina was not identified as a fact witness during core discovery and Nancy had no
notice about Christina testifying. Nancy therefore was not able to prepare for Christina's cross
examination or prepare for the counter arguments to Christina's testimony. There is no indication
that Jack supplemented his core discovery disclosures before this point in trial. Nancy has no
notice because Jack failed to update his fact witness information when it became incomplete.
Jack should have added Christina onto his list of fact witnesses and submitted this to Nancy. The
court is able to punish those that fail to supplement their discovery responses like Jack did in this
case.
Therefore, the court should sustain Nancy's objection to Christina testifying and prevent
Christina from taking the stand as a fact witness.
10. Error and New Trial
Instructions
Jury instructions are one of the most common forms of erros. A judge may give instructions
only on subjects that had evidence presented at trial. Usually attorney's will present proposed
jury instructions and the judge may only give them if: 1. there was evidence presented at trial on
the subject of the instructions and 2. if the attorney's submitted instructions accurately state the
law.
Here, the trial evidence focused exclusively on causation however, the court gave instructions
on duty, breach, causation, damages, and statute of limitations. Statute of limitations was not
even mentioned and was definitely not plead as an affirmative defense. Nothing else besides
causation was deliberated on during trial. The evidence presented was exclusively on the issue of
causation - specifically whether Grace Industry's waste disposal facility was responsible for
Luke's leukemia. The judge should never have given instructions on any other area other than
causation since evidence was only on this subject.
Therefore, the court is responsible for instructional error.
Motion for New Trial
A motion for new trial is made when there has been prejudicial error to a party's case. In this
case, the judge can act as a thirteenth juror and weigh the evidence if necessary. Prejudicial error
occurs if evidence is admitted or excluded when it should not have been, jury/party/la wyer
misconduct, excessive damages, or verdict against the weight of the evidence. Judges are more
likely to grant motions for new trials because here if they are overturned at least there is a jury
verdict to fall back on.
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Here, a general verdict was given that merely stated the jury holds for defendant Grace
Industries. It did not state the basis for the verdict or exactly what issue Luke's case failed on
since instructions were given on duty, breach, causation, damages, and statute of limitations. The
verdict seems to be against the weight of the evidence. There were numerous fact witnesses that
said they saw Grace Industries' dumping liquid into the rive. A reasonable jury could find for
Luke because they could make an inference that the water containing hazardous waste made its
way to the water that Luke drank and this is what inffected him. In addition, the judge made an
instructional error which allowed the jury to consider other aspects that were not addressed by
evidence during trial. Since the general verdict does not say what the basi s for their verdict was,
it is possiblre that they found for Luke on the issue of causation, but overall found for Grace
Industries because one of the other areas like duty or breach was not satisfied.
Therefore, the court should grant the plaintiff's motion for new trial because there was
prejudicial error through the instructions that affected Luke's case.
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