BEST STUDENT PAPER - TORTS EXAM - SPRING 2013 - Prof. George Conk - Fordham Law School
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Institution: Fordham University School of Law
Course / Session: 20138 TORTS12 - Conk
Exam Mode: Closed
Exam ID: E58233665
Total: 5603 Words / 27013 Characters (4 sections)

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ANSWER TO QUESTION 1

Summary of Facts

Ameila Reardon of Brookline Massachusetts underwent a hip replacement and received a ASR
Metallic Hip, which was made by Depuy Orthopedics. The ASR Metallic Hip was designed with
a metal femoral ball that was in direct contact with the metal acetabular cup. The theory in this
design was that it would reduce wear and allow the "total hip replacement system" to last longer
than 15 years. In fact, the new design was substantially worse than the old - in that it had a 5
year revision rate of 12-13% rather than the typical 5%.

Ms. Reardon's hip replacement caused pain due to uneven and excessive wear and had to be
replaced in by November 2011. As a result of the replacement surgery she missed 9 months of
work.

Claims we will Assert on Behalf of Ms. Reardon

On behalf of Ms. Reardon we will bring breach of implied warranty of merchantability claims
against Depuy. We can assert those claims on both a (1) a design defect theory and (2) a failure
to warn theory. These claims will be brought in Massachusetts ("Mass.") state court, but Depuy
will likely remove to federal court, but the applicable law is Mass. law. I will analyse each
theory now in turn.

Massachusetts Product Liability Law

The cause of action in Mass. for what in most jurisdiction would be called a "product liability
action" is a breach of implied warranty action. Mass Gen Laws 2-314(2)(c). The implied
warranty is "intended to be as comprehensive as the strict liability theory of other jurisdictions."
See Osorio (citing Back). Massachusetts law is "congruent in nearly all respects with the
Restatement (Second) of Torts § 402A."

Design Defect Claim

Under Mass. implied warranty law, products must be designed so that they are fit for the
ordinary purposes for which such goods are used. A product is reasonably fit for its purposes if
the design prevents the reasonably foreseeable risks attending the product's use in the setting.
In this case, the ASR Metallic Hip must be reasonably safe to be used in individuals' bodies.

To determine if a product meets the standard of "reasonably safe," two approaches can be used:
(1) a consumer expectations test or (2) a risk-utility analysis. Both are appropriate under Mass.
law, but a consumer expectation test is only employed when it is within the province of the jury
to understand the defect. If expert testimony is needed, a risk-utility analysis is favored.
Overall, the majority of cases in Mass. are tried on a risk-utility analysis. See e.g., Osorio.

Consumer Expectations Test

This may be a case where Ms. Reardon could assert her claim on a consumer expectations
theory. Under the consumer expectations test, a product is defective if it has failed to perform
as safely as an ordinary consumer would expect when used in an intended and foreseeable way.
See Barker; Restatement (2nd) § 402A cmt. G.

Here the jury could likely determine that the ASR Metallic Hip replacement was not designed in
a way that the ordinary consumer would expect. It would be astonishing, to the ordinary
consumer that the ASR Metallic hip, which was designed after research by Depuy to increase
its longevity, would exist in a condition that result in an 8% increase in the chance that it would
fail. Despite this, we must anticipate that Depuy may persuade the court to analyse this problem
under a risk utility analysis (many defendant's lawyers have seen the risk-utility test as a
victory for the defense bar, although some Plaintiff's lawyers prefer a risk-utility analysis also).
I think that Ms. Reardon stands a good chance at recovery if the court employs a consumer
expectations test.

Risk-Utility Analysis with the Barker Factors

Ms. Reardon still has a strong chance at recovery if the court employs a risk-utility analysis.
Mass. has adopted the factors used in Barker v. Lull Engineering, which were modeled on
Professor Wade's famous "Wade Factors." The factors are (1) the gravity of the danger posed by
the challenged design, (2) the...

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The full exam answer covers 4 sections/questions.]