Clarification Questions and Answers

Transcription

1 Clarification Questions and Answers For purposes of this competition, the answer to any clarification question shall be treated as a stipulation during the trial. The competitors are bound by the answers as if they were set forth in the problem originally. 1. While I can tell from the docket number that the case was filed in 2008, could you please provide the dates of the pleadings and the dates of the depositions? Answer: The depositions occurred in the normal course of discovery. Both Michael Vronsky and Kim Longnecker were deposed on April 30, Can you please provide a little more description of the emergency stop device proposed by the plaintiff's expert? Answer: See Pat Staal s Supplemental Expert Report. 3. I believe jury instruction 3 is misstated. In line 2, shouldn't the phrase "that made it unsafe" be "which would make it safe"? Answer: This has been corrected as reflected in the revised jury instructions. 4. Can you give us some detail about what is shown in photos 13 and 14? (and what is black stuff in picture). It is difficult to identify the body part we are looking at. Answer: Discovery Response 13 is a photograph of Plaintiff s foot following the accident. Discovery Response 14 is a photograph of Plaintiff s hand and arm following the accident. The black stuff is burned skin and muscle. 5. Were the broken bones/torn ligaments in both hand/arm and foot/leg? Answer: Plaintiff had sustained broken bones and torn ligaments in both his hand and arm and his foot. 6. Plaintiff testifies that he had an injury to his hand only, but clearly from the photos, it is hand and arm or forearm. Is this correct? Answer: Plaintiff s injuries extended to his elbow. 7. Can we assume the emergency stop proposed by plaintiff's expert would run the length of the opening on top of the twine box shown in the photos? Answer: See Pat Staal s Supplemental Expert Report.

2 8. Can we argue basic design principles, even though not in the expert reports (identify, guard, etc.)? Answer: The answer to this question is governed by the Federal Rules of Civil Procedure. 9. Diagram 5 is supposed to show the position Longnecker found Vronsky in after the accident -- this doesn't seem likely. Can you clarify? Answer: This is covered in Streib s expert report. 10. Does jury instruction 11 cover foreseeable "misuse"? 11. Since there is no comparison question on the verdict, is any misuse by Vronsky an absolute bar to liability? Misuse is to be considered by the jury in reaching its determination as to causation. 12. Assuming both parties are found liable (jury answers yes to all questions on the verdict form) does the apportionment of fault happen in the damages phase? Answer: This is a strict liability jurisdiction. There is no comparative fault or apportionment of damages. 13. In the answer, paragraph 7's last sentence reads "the averments of paragraph 6". Is this a typo? Answer: Yes. It should read paragraph Does stipulation 3 require defense to admit that a knife was actually used? 15. Can we have a photo showing where the emergency stop switch would go? Answer: See Staal s Supplemental Expert Report. 16. Are we to assume that DR11 is an actual photo of the baler involved in this accident? Answer: Yes 17. There appear to be inconsistencies between the appearance of the rollers in photos

3 8, 9 and 10. (grooves in some but not others). Are we stipulating that these are all photos of the same baler, and it's the one involved in this accident? Answer: All photographs were taken of the baler involved in the accident. Those are not grooves they are a figment of your collective imaginations. 18. Can we please stipulate that no student playing the plaintiff will limp, or use any kind of prop to indicate the injury? Answer: Yes. Plaintiff has physically recovered fully from his injuries. 19. Does NFTC actually make a scraper or is the one Longnecker put on after the accident built by another company? Can the defendant say that NFTC does not make a scraper? Answer: NFTC manufactured a scraper, and it did so at the time the baler was designed and sold to Kim Longnecker. The parties are not sure who manufactured the scraper that was eventually installed by Kim Longnecker. 20. Can all rollers be accessed by lifting up the tailgate and is it a necessary inference that defense expert can say there is no reason anyone would ever need to clean hay from the rollers by accessing the baler from the open area on top? Answer: No to both. 21. I have a concern about the use of Edge's deposition. I think I understand the rule on how it may be used (stipulation 6), but it is a little confusing with respect to "hearsay." I assume the first level of hearsay is not objectionable, but second levels are. Answer: Shane Edge s deposition testimony itself is not subject to a hearsay objection. However, that does not preclude a team from raising an objection to hearsay testimony contained within the deposition. 22. The rule regarding enlargements (paragraph 16 of the official rules, not the local rules) also says nothing can be "redacted." I assume that means that if we enlarge a portion of a page, such as just the diagram of the bailer on page 2-1 of the manual and not the list of parts, we should not leave anything out of the portion we enlarge, portion, but that we are not required to enlarge the whole page. This may also come up with the jury instructions, where we may want to enlarge a paragraph, but not the whole page. Answer: The exhibits must be enlarged as they have been produced in discovery and disseminated as part of the fact pattern. However, the diagrams in the manual may be enlarged so as to exclude the list of parts. Also, teams may enlarge only those jury instructions that they wish to use. 23. Was the baler that the expert, Staal, inspected as part of his investigation the exact same baler that injured Vronsky or only the same model?

4 Answer: Staal and Streib inspected the baler involved in the accident. The emergency stop device was placed on this baler with the permission of both parties after their initial inspections were completed. 24. Rule 11 says Federal Rules of Criminal Procedure - it should say Civil, not Criminal. Answer: It should read Federal Rules of Civil Procedure. 25. Did Kim's son die before or after Michael Vronsky's incident? Answer: Kim has three sons. One died before the September 4, 2004 incident. The others are still alive. 26. There is a stipulation that covers the photographs but the warning sticker is not identified as a photograph and no witness authenticates it. Will there be a stipulation or something else that makes it admissible? Answer: This is actually a photograph of the warning sticker. It is subject to the same stipulations as the other photographs. 27. Also the list of exhibits has some descriptions such as an assertion that a photograph depicts the place where "the plaintiff claims" his injury occurred. Can we take those assertions as stipulations, that for example the plaintiff does claim the injury occurred at the place depicted. These are not stipulations. 28. The owner's manual has page numbers that are missing or inconsistent. For instance, the first page doesn't have a page number but, instead, has a small '64' in the bottom left of the page and in Section 2 the pages are numbered 2-1, 2-2, 2-3, 2-4, and then 2-1 again. Can we re-number the pages for the purposes of trial or can a new manual be issued with corrected page numbers? Answer: A new manual will be made available where the pages proceed in numerical order. 29. During the deposition testimony, it appears that the roller that Michael was scraping is the metal roller pictured in Discovery Responses 7 and 8 with hay wrapped around it and in Discovery Response 9 without hay. However, this is not the roller marked on Discovery Response 2 with the "X," "2," and "D" as the roller Michael was cleaning. Additionally, the roller that Michael marked on DR 2 as the roller he was cleaning has belts on the outside of it, meaning that Michael would have been scraping the belts rather than the roller.

5 Answer: The D in the discovery response points to the roller under the belt. Plaintiff was cleaning the metal roller that is on top of the belt, as is depicted in the photographs, when the incident occurred. 30. Is the metal roller pictured in DR 7, 8, and 9 between the drive roller with the belt on it and the support bar the roller that Michael was cleaning? Answer: See the Answer to Question And, if so, was the inconsistency between the diagram on DR 2 and the pictures intentional? Answer: See the Answer to Question Are students permitted to use PowerPoint? 33. Will you release any additional information regarding the proximity of the belts and rollers to the chains (which can be greased while in motion) on the round baler? 34. Does this jurisdiction follow the consumer expectation/contemplation test or the risk utility test? Answer: All the law required/given is contained in the jury instructions. 35. Is plaintiff required to prove alternate design? Answer: All the law required/given is contained in the jury instructions. 36. In Longnecker s deposition, at page 30, line 10, what photo is he talking about? Discovery response 3 is a warning label. Answer: This should be DR On Pat Staal s resume, at page 38 what does legally feasible mean as it applies to alternative designs? Answer: The offered alternative design was not accepted because of the law of those jurisdictions. 38. Are we going to be able to use technology during our opens and closes (such as PowerPoint presentations)

6 Answer: The courtrooms we will be using have remarkable tools that will be able to be used by the advocates. There are touch screen monitors that permit witnesses and advocates to mark the exhibits while they are on screens at counsel table, in the jury box and in front of the judge. With respect to power point, it may not be used. 39. Rule 102 says each side will be given 80 minutes to argue their case, with 7.5 minutes for motions (175 minutes total), and the Judge can only extend to 180 minutes. Does that mean the Judge can extend an additional 20 minutes (motions excluded) or an additional 5 minutes? Answer: The TOTAL permitted time will be 195 minutes which will not include argument time for the motions in limine. 40. Is it a reasonable inference to assume Vronsky was crying for help while caught in the machine for 20 minutes? Answer: Yes, unless anybody else here has ever become entrapped in farm machinery and can tell me otherwise. However, please remember that this competition follows the necessary inference rule. 1992? 41. Was it economically and mechanically feasible to manufacture the scraper in Answer: The answer is within the fact pattern. 42. Are there limits on the number and size of enlargements we can use? 43. Page 19, line 14 - The line says "scraped the hay of off the roller." Is this a typo? Answer: Yes. It should read Off of the roller. 44. Is the roller that's marked as exhibit 2, page 2-1, the same as the roller covered in hay in exhibits 8 and 9. Answer: See the answer to question On page 42, Streib says "lead engineer for project design" - is this a typo meant to say "product?" Answer: It should say product. 46. On page 38, Streib says the emergency stop device has been used on "this Round Baler 3000." Is he referring to his own device or does he mean that NFTC has used this device in the past?

7 Answer: See the answer to question Can it be stipulated to that the experts' reconstruction exhibits are computer generated? Answer: Yes. 48. Can the enlargement act as the actual exhibit or do we have to lay foundation for the original? Answer: Any enlargement that is created will not be the original. Proceed accordingly.