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Question One:

On March 10, 2002, Barbara Bashful, a citizen of Columbia State, consulted Dr.
Mal Practice, a noted dermatologist. Barbara related to Dr. Mal Practice that, to overcome
her shyness, she decided to enter the Ms. Junior Ms. Of Columbia State contest. She had
high hopes of winning the beauty contest but believed she would stand an even better
chance of being crowned Ms. Columbia State if she got rid of the freckles that dotted her
face. Dr. Mal Practice told her of a new wonder drug that would get rid of her freckles
instantly. He promptly wrote out a prescription for "Feckless Freckle Remover" and gave
it to Barbara. It was indeed a miracle drug. Within three days of ingesting the pills,
Bashful's freckles disappeared. Unfortunately, on March 15, 2002, five days after she
began to ingest the drugs, Barbara woke up, staggered to the mirror, and was horrified to
see that, in place of her former freckles, she had little purple triangles all over her face.
The triangles have proved to be a permanent side effect of the drug.
Barbara immediately consulted the law firm of Shyster & Shyster, and on March
11, 2003, filed a complaint in the state court of Columbia State. She claimed personal
damages in excess of $100,000. She named as defendants Dr. Mal Practice and the
Dastardly Drug Company, the manufacturer of freckle remover pills sold under the trade
name "fearless Freckle Remover." The complaint alleged that the Dastardly Drug
Company is incorporated and has its principal place of business in Rhode Island and
that Dr. Mal Practice is a citizen and resident of Rhode Island. Service of the summons
and complaint on the defendants occurred on March 13, 2003. The complaint alleged a
negligence claim under Columbia State law against both defendants for failure to give
proper warnings about the known risks of ingesting the pills. It also asserted a claim of
strict liability against the Dastardly Drug Company on the theory that the freckle remover
pills are unavoidably unsafe because their ingestion can cause permanent skin
discoloration. Unavoidably unsafe products that carry no warning to the consumer of
known risks can subject the manufacturer to absolute liability pursuant to Columbia state
law.
Immediately upon receipt of the complaint, Dr. Mal Practice filed a petition for
removal and removed the action to the Columbia federal district court on March 13,
2003. Three days after filing her complaint, on March 14, 2003, Barbara Bashful realized
that Dr. Mal Practice did not require that the prescription be dispensed as written. Instead,
the doctor had specified that generic equivalents of the freckle remover may be
prescribed. Barbara immediately went to her pharmacist Harried Harry told him her
sad tale and asked him to ascertain whose pills he had dispensed. Harry informed Barbara
that she ingested two different pills: for the first two days she ingested the "Fearless
Freckle Remover" manufactured by the Dastardly Drug Company. She then refilled her
prescription, but this time she was given the cheaper generic equivalent, called the
"Fearless Freckle Remover," manufactured by the Bastardly Drug Company, a
corporation incorporated in Delaware and having its principal place of business in Rhode
Island. Both the Dastardly Drug Company and the Bastardly Drug Company are
subsidiary corporations with some overlapping management of the conglomerate,
Drug Corporation of the World.

Barbara also discovered, shortly after she filed her complaint, that Dastardly
Drugs, in fact, has its principal place of business in Columbia State.
Accordingly, on March 23, 2003, before either defendant had responded, Barbara
Bashful served an amended complaint omitting the Dastardly Drug Company, and
substituting in its place, the Bastardly Drug Company. Bastardly moves to strike the
amended complaint and dismiss the action as time-barred.
Moreover, preliminary investigation has revealed that some time before Barbara
was given the prescription for the pills, both the Bastardly and Dastardly drug companies
sent notices to all dermatologists and druggists notifying them that all freckle remover
pills had a dangerous side effect: the pills caused permanent colored shapes to appear on
the patient's face within days of ingestion of the pills. However, the notice continued,
imbibing one tablespoon of castor oil along with the pill prevented any adverse side
effects from occurring. Rather than recall the pills or insert warnings on the pill packages,
the drug companies instructed dispensers and prescribers of the freckle remover pills to
tell the patient to take castor oil with the pills.
Unfortunately, it appears that Harried Harry, the pharmacist from whom Barbara
purchased the pills a citizen of Columbia State - and Dr. Mal Practice both threw the
notices in the garbage without reading them.
Accordingly, on May 4, 2003, the Bastardly Drug Company moved for leave to
assert "third party claims" against Dr. Mal Practice, Harried Harry, and the Dastardly
Drug Company, for all or part of the claim asserted by Barbara against Bastardly.
Bastardly contends that Dr. Mal Practce and/or Harried Harry were solely or
contributorily negligent for failing to warn Barbara of the risks associated with the pill
and the need to take castor oil and that some of the pills ingested by Barbara were
manufactured by Dastardly and thus could have been the sole or contributory cause of the
unfortunate side effect. In the alternative, Bastardly moves for dismissal of the action on
the ground that Harried Harry and Dastardly Drugs are necessary and indispensable
parties.
Dr. Mal Practice contends that the "third party claim" is improper against him.
Harried Harry and Dastardly Drugs oppose the third party complaint for lack of subject
matter jurisdiction; lack of a substantive right to relief; and as untimely. Barbara opposes
the Rule 19 motion. In addition, Barbara moves for leave to amend her complaint to
again assert a claim against Dastardy Drugs and, for the first time, against Harried Harry.
You are a law clerk to Judge Oliver Bumbler Bones of the Columbia federal court.
Judge Bones asks you to prepare a bench memorandum to advise him on how to rule on
the various motions sub judice.
Specifically:
1. How should the court rule on Bastardly's motion to strike Bashful's amended
complaint substituting Bastardly as a defendant.
2. Assuming the court does not strike the amended complaint, how should the
court rule on (a) Bastardly's motion for leave to assert "third party claims"
against Dr. Mal Practice, Harried Harry, and Dastardly; and (b) Bashful's motion
to amend her complaint to assert a claim against Dastardly and Harried Harry?
3. Assuming the court does not permit Bastardly to implead Dastardly or Harried
Harry, should the court dismiss the action under Rule 19?

Judge Bones tells you to consider the following state and federal rules before writing
the memorandum:
1.

2.
3.

Columbia State has a oneyear statute of limitations on personal injury claims.


According to the Columbia Civil Practice Rules, an action is deemed
commenced when the summons and complaint are served on the defendant. The
Columbia Civil Practice Rules also provide: "To enable the plaintiff to sustain
the action for the cause for which it was intended to be brought, and in the
interests of justice, the court may, at any time before final judgment, allow an
amendment changing the party against whom a claim is asserted."
Columbia State does not provide for contribution among joint tortfeasors.
A recently promulgated Rule 88 of the Federal Rules of Civil Procedure
provides as follows:
"A right to equitable contribution exists among joint tortfeasors."

Question Two

Assume that the Columbia federal court permitted Barbara Bashful to amend her
complaint to assert claims against the Bastardly Drug Company and that, after much
procedural maneuvering, Barbara Bashful's case against the Bastardly Drug Company
was submitted to the jury. The jury was asked to rule on both the negligence and strict
liability claims. In answers to special interrogatories, the jury found both negligence and
strict liability and awarded Barbara $100,000 in damages. The Bastardly Drug Company
did not appeal.
You are an associate in the law firm of Burns, Allen, and Von Zell, which
represents Calamity Jane, a citizen of the state of Columbia. Calamity Jane ingested over
a month long period freckle remover pills made by three different manufacturers: the
Bastardly Drug Company, the Skull and Bones Drug Company (S&B), a corporation
incorporated in and having its principal place of business in New Jersey, and the Pretty
Poison (PP) Drug Company, incorporated and having its principal place of business in
New York. Within a month of ingesting the pills, yellow rectangles appeared all over her
face. Calamity Jane initiated a personal injury suit in Columbia federal court against
Bastardly Drug and S&B Drug, seeking damages of $150,000.
The senior partner, George Burns, tells you that Calamity Jane has moved to
preclude S&B and Bastardly from litigating the issues of negligence and strict liability. If
the motion is granted, all that Calamity Jane need prove is ingestion of the pills and
resulting damage.
On the advice of Burns, Calamity Jane did not join the Pretty Poison Company in
the federal court action. Burns suggested to Jane that she wait until the conclusion of the
action against Bastardly Drug and S&B and then sue Pretty Poison for $200,000 in a
separate action.
Burns asks you to evaluate the strength of the motion to preclude Bastardly and
S&B from litigating the issues of negligence and strict liability. He asks you to consider
all possible grounds for affirmance, denial, or limitation of the motion. He also asks you
whether he erred in advising Jane not to join PP in the Columbia federal court action.
Specifically, he wants to know whether Jane's ability to maintain a separate, consecutive
action against a different manufacturer, such as PP, who may be liable for Jane's injury,
might be affected by the doctrines of claim or issue preclusion. He asks you to pay
particularly close attention to the policy arguments for or against preclusion in this
situation.
In making your evaluation, Burns instructs you to consider the possible relevance
of the following facts:
1. Freckle remover pills all have precisely the same composition. The only
difference among pills made by the various companies that manufacture them
is in packaging. None of the manufacturers, however, placed warnings on
their pills or on the packages.
2. Bastardly, S&B, and PP have no legal relationship with one another. All three,
however, participate in a trade association devoted to the interests of freckle
remover pill manufacturers. When the Barbara Bashful suit was brought, the
association, on behalf of its members, agreed to finance the litigation.

3. Soon after the Barbara Bashful suit was brought and prior to Calamity Jane's
initiation of action, both Bastardly and S&B were sued by Typhoid Mary, who
ingested freckle remover pills and woke up three days later with blue circles
dotting her face, on theories of negligence and strict liability. The jury
returned a general verdict in favor of the drug companies in that action.
4. Columbia is a very conservative state. It was not until last year that the highest
Columbia state court finally abandoned strict application of the doctrine of
mutuality. The court said:
"Originally, mutuality was essential to the invocation
of collateral estoppel. We hold, however, that mutuality
in the strict sense is no longer required at least in so
far as defendant wishes to use collateral estoppel as a
shield to preclude a party, or one who is in privity with
a party, who has already litigated and lost against
another defendant, from relitigating the same issue
again."
5. Columbia state courts define persons in "privity" with a
party as those who have some substantive legal relationship with the
party to the prior judgment such as successive interest in the same
property. Finally, no Columbia state court has ever applied collateral
estoppel offensively.
6. Unlike the Columbia state courts, the Columbia federal courts have adopted
an expansive view of preclusion. You may assume that they follow the
Restatement (Second) of Judgments rules set forth in your casebook and/or
class discussion as well as those cases in your casebook that specifically state
a federal rule of preclusion. In addition, you should consider the following
decisions recently rendered by the federal courts of Columbia:
a. In X v. Y, the federal circuit court that includes Columbia held that a
person who is not a party to an action but who is represented by a
party or who controls, finances, or substantially participates in the
control or finance of the presentation of evidence on behalf of a person
is bound by and entitled to the benefits o a judgment as though he were
a party.
b. In A. v. B, C. and D, a Columbia federal district court stated in dictum
that the doctrine of claim preclusion may apply to bar a plaintiff who
has lost the first suit from suing a different defendant on the same
claim. Plaintiff originally sued B and C in an action for abuse of
process. The first suit was dismissed with prejudice before trial.
Plaintiff then sued B, C, and D in a second action based on precisely
the same facts. A Columbia federal district court dismissed the suit
against all three defendants under the doctrine of claim preclusion
because the same claim was involved in both suits.