Spring 1999 Professor Cupp Total No. of Questions: 2 Time: Two (2) Hours QUESTION I (Sixty Minutes) While a teenager in the late-1980's Lisa Smith was a bit rebellious. She contemplated smoking tobacco cigarettes as an expression of her rebellion, but she knew of their health hazards and did not want to become addicted or to develop cancer. Lisa heard from friends that cigarettes made from cloves instead of tobacco tasted better than tobacco, were not addictive, and could not cause cancer or other diseases. Thus, Lisa started smoking about 20 clove cigarettes a day in 1988, and continued until 1992. She began trying to quit in 1989, but discovered she was addicted. She made several attempts to quit before finally succeeding in 1992. Fourleaf, Inc. is the only clove cigarette manufacturer in the world. It began manufacturing clove cigarettes in 1976. Fourleaf does not place filters on any of its clove cigarettes. Assume that purchasers of clove cigarettes in the ‘70s and ‘80s were mostly motivated by the same factors that influenced Lisa: a perception of better taste, no addiction, and no cancer risk. While never making any representations about the safety or nonaddictiveness of clove cigarettes, Fourleaf greatly benefitted from consumers’ perceptions that its product was safe and nonaddictive. Fourleaf was very aware that these perceptions significantly boosted sales. Prior to 1993 no scientific study had ever been conducted to determine whether clove cigarettes actually were nonaddictive and safe. Executives at Fourleaf had heard several stories of people claiming to have suffered addiction and/or cancer from smoking clove cigarettes, but there was no hard scientific evidence. However, in 1993 a renowned medical school professor published a medical journal article reporting on a study he had performed regarding clove cigarette use. The highly respected study indicated that about 20 percent of clove cigarette smokers become physically addicted, and that clove cigarettes cause lung cancer in about three percent of all persons who smoke them. The study further indicated that adding filters to the clove cigarettes would reduce the incidence of cancer to only about one percent of all persons who smoke them. After learning of the study Fourleaf decided to begin warning of the risk of addiction. However, it decided that the risk of cancer was too small to justify a warning. Despite the study, Fourleaf decided against adding filters to its cigarettes. Adding filters would raise the price of the clove cigarettes by 10 percent, and would make the taste less powerful. In late 1998 Lisa was diagnosed with lung cancer. It was proven that her cancer was proximately caused by smoking Fourleaf’s clover cigarettes. The cancer quickly killed Lisa; she died in April 1999. Lisa’s will left everything to Kim Wolf, Lisa’s roommate and best friend since elementary school. Lisa did not have any living relatives at the time of her death. Prior to her death Lisa had rented an apartment and had let Lisa live in one of the bedrooms for free. Kim was quite distressed over her best friend’s death. Discuss any tort claims that might be brought against Fourleaf. However, do not address contributory negligence, comparative negligence or assumption of risk.
QUESTION II (Sixty Minutes) Paul Pringle is a dentist in a small town called Farmland. Criminal charges were brought accusing Paul of molesting five of his female patients while they were under anaesthesia and helpless. The jury acquitted Paul of all charges at the criminal trial, finding that the charges had not been proved beyond a reasonable doubt. Shortly after Paul’s acquittal the small local newspaper, called The Farmland Times, published a front page article addressing generally the apparently growing problem of dentists molesting patients while under anaesthesia. The article addressed the problem from a national perspective, noting that convictions for this kind of crime by dentists have risen sharply in recent years. The article did not focus primarily on the claims against Paul, although in the final paragraph it concluded by addressing the local case that was brought against him. The last paragraph read: "In our own town, we have faced the accusations against Paul Pringle. In this reporter’s opinion, Paul probably did commit three of the five assaults alleged by his patients (the alleged assaults against Mary Smith, Jane Jones, and Mary Fields). However, ‘probably’ is not the same as proof beyond a reasonable doubt, and thus, perhaps unfortunately, Paul Pringle remains a free man." The article’s headline read "The Great Betrayal: When Dentists Molest Patients -- A National Disgrace." Next to the headline was a large picture of Paul being taken into the local courthouse in handcuffs. The picture was taken when Paul was first arrested on the molestation charges. The article was written by Damien, who individually owns The Farmland Times and who personally prepares every aspect of the newspaper (writes every story, takes every picture, prepares all layouts, sweeps the floors, etc.). Indeed, the newspaper is not even a corporation; Damien runs it as his personal business rather than giving it a separate corporate identity. Damien’s wife, Flora, is also a dentist in Farmland. Flora is Paul’s primary competitor for dental work in the community, and both Flora and Damien intensely dislike Paul. Paul claims that many of his patients abandoned him because of Damien’s article, and that other people who were potential patients would not patronize him because of Damien’s article. Paul also claims that most of these patients and potential patients began going to Flora for their dental work. Address tort claims Paul may bring against Damien, and only Damien. Do not separately discuss claims against The Farmland Times (since it is not separate from Damien). Also, do not discuss: 1. Appropriation of name or likeness; 2. Public disclosure of private facts; or 3. Any claims against Flora.
QUESTION I (Sixty Minutes) Utopia, Inc. manufactured herbal products sold by health food stores as alternatives to conventional medicines. One of its products, "Saint Peter's Flower," was made from the flower of a weed called "Saint Peter's Weed." Scientific studies indisputably established that it was a natural antidepressant; a sort of herbal Prozac. No prescription was required to buy this product. Utopia conducted numerous scientific tests on the weed, and discovered that the chemical that made the weed effective as an antidepressant could be enhanced through cultivation. Therefore, Utopia hired botanists to breed a new "super" version of the plant that would produce more of the chemical. Utopia then used the "super" plant to make its product more effective. The "super" version of the plant also caused fewer users to suffer headaches, a common side effect of taking Saint Peter's Flower. However, the "super" plant was slightly more expensive to make. Many consumers feel that using natural herbal remedies such as Saint Peter's Flower is more natural and healthier than taking synthetic drugs, such as Prozac. Saint Peter's Flower is also cheaper, and does not requiter costly doctors' visits. Further, many consumers feel that using a product such as Saint Peter's Flower does not engender the negative social stereotypes associated with the use of prescription antidepressants such as Prozac. Ingesting large quantities of the active chemical in Saint Peter's Flower causes a unique form of cancer in a small percentage of people. Utopia's managers did not know this at the time they sold their "super" plant product with enhanced levels of the chemical. However, a study revealing the increased cancer risk caused by exposure to high levels of the chemical had been published in a minor medical journal in England. Mary regularly bought Utopia's Saint Peter's Flower product for her aunt Polly, who lived next door to Mary. After a year of using the product Polly developed the unique form of cancer associated with too much exposure to the active chemical in Saint Peter's Flower. Assume that it is absolutely certain that Polly would not have developed this cancer but for Utopia's development and use of the enhanced "super" plant. Inside each bottle of Utopia's Saint Peter's Flower was an insert explaining how to use the product. the insert was not visible unless the bottle was opened. The insert clearly and adequeately described an appropriate dosage, and also stated in large letter: "All the Safety of Mother Nature." Because she was often mildly depressed, Polly often took a little bit more than the recommended dosage. Analyze Polly's potential legal claim(s) against Utopia. However, do not discuss failure to warn, and do not discuss fraud or negligent misrepresentation. To repeat: don not discuss failure to warn, fraud or negligent misrepresentation.