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Best student paper - Torts exam

Best student paper - Torts exam

Ratings: (0)|Views: 856 |Likes:
Published by George Conk
Best student paper in torts final exam
Spring 2013
Prof. George W. Conk
Fordham Lw School
Best student paper in torts final exam
Spring 2013
Prof. George W. Conk
Fordham Lw School

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Categories:Types, Business/Law
Published by: George Conk on Jul 10, 2013
Copyright:Attribution Non-commercial

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12/14/2013

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E58233665
*E58233665-2.-27-1*
E58233665
Institution
Fordham University School of Law
Course / Session
20138 TORTS12 -Conk
Exam Mode
Closed
 
NA
Extegrity Exam4 > 13.4.29.0E58233665-2.-27-1Section
All
Page
1
of
27
 __________________________________________________________________________________________ 
Institution
Fordham University School of Law
Course
20138 TORTS12 -Conk
Instructor
NA
Exam Mode
Closed
Exam ID
E58233665
 
Count(s) Word(s) Char(s) Char(s) (WS)Section 1
2075 10201 12252
Section 2
1863 9220 11062
Section 3
1081 4945 6017
Section 4
584 2647 3222
Total
5603 27013 32553
 
E58233665
*E58233665-2.-27-2*
E58233665
Institution
Fordham University School of Law
Course / Session
20138 TORTS12 -Conk
Exam Mode
Closed
 
NA
Extegrity Exam4 > 13.4.29.0E58233665-2.-27-2Section
All
Page
2
of
27
 __________________________________________________________________________________________ 
Answer-to-Question-_1_ Summary of FactsAmeila Reardon of Brookline Massachusetts underwent a hipreplacement and recieved a ASR Metallic Hip, which was made byDepuy Orthopedics. The ASR Metallic Hip was designed with a metalfemoral ball that was in direct contact with the metal acetabularcup. The theory in this design was that it would reduce wear andallow the "total hip replacement system" to last longer than 15years. In fact, the new design was substantial worse than the old- in that it had a 5 year revison rate of 12-13% rather than thetypical 5%.Ms. Reardon's hip replacement caused pain due to uneven andexcessive wear and had to be replaced in by November 2011. As aresult of the replacement surgury she missed 9 months of work.Claims we will Assert on Behalf of Ms. ReardonOn behalf of Ms. Reardon we will bring breach of impliedwarranty of merchantability claims against Depuy. We can assertthose claims on both a (1) a design defect theory and (2) afailure to warn theory. These claims will be brought inMassachusetts ("Mass.") state court, but Depuy will likely removeto federal court, but the applicable law is Mass. law. I willanalyse each theory now in turn.Massachusetts Product Liability Law
 
E58233665
*E58233665-2.-27-3*
E58233665
Institution
Fordham University School of Law
Course / Session
20138 TORTS12 -Conk
Exam Mode
Closed
 
NA
Extegrity Exam4 > 13.4.29.0E58233665-2.-27-3Section
All
Page
3
of
27
 __________________________________________________________________________________________ 
The cause of action in Mass. for what in most jurisdictionwould be called a "product liability action" is a breach ofimplied warranty action. Mass Gen Laws 2-314(2)(c). The impliedwarranty is "intended to be as comprehensive as the strictliability theory of other jurisdictions" See Osorio (citingBack). Massacusetts law is "crugent in nearly all respects withthe Restatement (Second) of Torts § 402A/Design Defect ClaimUnder Mass. implied warranty law, products must be designedso that they are fit for the ordinary purposes for which suchgoods are used. A product is reasonably fit for its purposes ifthe design prevents the reasonably foreseeable risks attendingthe product's use in the setting. In this case, the ASR MetallicHip must be reasonably safe to be used in individuals bodies.To determine if a product meets the standard of "reasonablysafe," two approaches can be used (1) a consumer expectationstest or (2) a risk-utility analysis. Both are appropriate underMass. law, but a consumper expectation test is only employed whenit is within the provine of the the jury to understand thedefect. If expert testimony is needed, a risk-utility analysis isfavored. Overall, the majority of cases in Mass., are tried on arisk-utility analysis. See e.g., Osorio.
Consumer Expectations Test

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