Download here or read after the jump. Due at the beginning of class next Tuesday, October 10. Please read and abide by all rules. Good luck.
Evidence
Preliminary Examination
Professor Howard Wasserman
FIU College of Law
Fall 2023
Format:
This Preliminary Examination will be administered over one week. It will be available beginning at noon on Tuesday, October 3 and due in hard copy at the beginning of class on Tuesday, October 10. You can download the exam from the blog (fiuevidence.blogspot.com); you will return it in class.
The exam consists of seven (7) Short-Answer Questions, worth ten (10) points each. The exam will be worth 70 points towards your final grade.
You may write up to 300 words on each question unless a question indicates otherwise.
The first page of your exam answer must be a cover page containing your Blind ID #; begin your answers on the second page. Please staple the pages (no paper clips or binder clips).
Each answer must include the word count for that answer, as described below. Two (2) points will be deducted from any answer not followed by a word count.
Please begin each answer on a new page.
Once the exam becomes available, you may not discuss it, the questions, the answers, or anything about it—in any oral, written, or other form—with your classmates, me, any faculty member, your friends, your family, strangers, pets, extra-terrestrials, inanimate objects, or anyone in the known universe. Please respect your classmates, yourself, me, and the legal profession by adhering to this rule.
A Note on the Case:
The questions all derive from one negligence and products-liability case in federal court. The introductory material provides a complaint with the basic claims and the applicable law. Subsequent questions add additional facts or issues relevant to the issue in that question and in subsequent questions. Once some fact or piece of information is introduced, it can be used for all subsequent questions—that is, later questions may require that you refer to or use (and cite to) information provided earlier (in other words, everything presented in the case could be fair game in answering the final question). Some questions cross-reference the answer to a prior question (e.g., Question # 3 may ask an additional question as to something discussed in Question # 2). Some answers may vary, depending on how you resolved a prior question; later answers should be consistent with prior evidentiary rulings, including those you made. Multiple questions may address distinct aspects of one issue. Some questions break the legal rule from the application (e.g., Question # 2 asks for the legal standard, Question # 3 asks you to apply it).
Read the entire case at the outset, before beginning to answer individual questions. That will help you understand the case and the information involved and how everything fits together, rather than focusing too narrowly on each atomized question.
Questions are in bold. All facts and information necessary to answer a question have appeared before that question. Any new information appearing after a question is for the next question and any subsequent questions.
The case is in federal court and governed by the Federal Rules of Evidence and applicable federal procedural statutes, as well as additional legal rules or cases provided in the exam.
Read the facts carefully. Most information is provided in the form of a trial transcript and witness testimony, so you must parse out what was said to find the key facts and information. There is not necessarily a question following each bit of testimony; some information is provided to give you a full picture of the trial and evidence for use in later questions and analyses. The portions of transcript provided do not constitute the entirety of the information provided at trial, but they give you everything you need to conduct the necessary analysis. Do not assume important information was in the missing sections, but do not draw any inferences from pieces you have not seen, unless the information states otherwise.
Read the questions carefully. Answer only the question asked, looking carefully at the information provided in the transcript excerpt and the prompts it provides. The questions and issues to be drawn out of each question are straightforward. Do not look for tricks or hidden balls. Most questions are discrete, narrow, and precise, asking you to resolve a specific question or issue. The questions likely do not require you to scroll through multiple issues or possible rules. Any rule or issue you introduce or mention should be analyzed and applied to the facts in detail. Do not mention a rule in passing as a conclusion.
The exam covers the first three sections of the course—Relevancy, Witnesses, and Impeachment.
Approaching Short-Answer Questions
You took the preliminary exam and saw the sample answers, so you know how this works and what your answers should sound like.
You may write up to 300 words on each question unless it says otherwise. That is an intentionally wide figure to give you maximum room to write, although you probably will not (and should not need to) write that much on many questions. Do not feel that you must write to the limit on every question; if you can give a complete answer in fewer words, do so. Save your words. Avoid throat clearing. (“The issue is” “As the Court, I would find . . .” “The defendant will argue . . .”). Jump right into your answer. When asked to be a party or the court, do not begin with “the party is likely to argue” or “the court is likely to find.” You are the party or the court, so just argue or find. If asked to reach a conclusion, do so. Do not italicize or bold or underline words you want the reader to see; the reader can figure it out.
Answer each question on a separate page, clearly identifying the question being answered at the start (write the question number in bold above the paragraph--e.g., Question 1). In a parenthetical at the end of each answer, you must state the number of words in that answer. For those taking the exam by computer, you can do this by highlighting the paragraph and doing “word count” for the highlighted portion. Each answer that does not include a word count will lose one point.
Each answer should be concise, brief, and direct. A good answer must identify and state the applicable rule (or relevant portion of the applicable rule), then apply it to the facts at hand to produce a conclusion with a short explanation. Your statement of the rule should include any elaborations from the notes, cases, class discussion, or other sources. Your application should discuss specific facts and explain why the rule is or is not satisfied.
Some questions address similar issues and are governed by the same rule. Unless otherwise indicated, you must provide the rule anew for each question (even if it means cutting-and-pasting). Do not supra to prior answers.
Do not combine the rule and application into a single sentence. Do not simply recite legal conclusions (e.g., “The evidence is relevant because it makes a fact more probable than without.”) or conclusions in the case (e.g., “The evidence should be admitted.”); explain it, applying the specific facts you have to a rule you already have described. Do not recite a legal principle without providing its source, but do not simply cite a rule by number without explaining its content (e.g., “This evidence is admissible under 401 because”)—I need to know what the rule says and means. The questions lend themselves to short, quick answers, as if you were making, responding to, or ruling on an evidentiary objection at trial. State the rule, explain it, and apply it to the facts that you are given. Answer only the question asked. It is enough to cite to § ___ or FRE ___, although cite to the precise provision in proper format (e.g., FRE 804(a)(5)(A)(ii)).
You cannot write a full and complete CREAC in this short space, so do not try. Provide a very brief conclusion at the beginning or end of your answer (not both)—“this evidence is admissible” or “the objection is granted.” Use the bulk of space on the Rule, Explanation, and Application/Analysis (“REA”), in which you are more than conclusory and you get into detail about the law and the facts. Avoid repetition.
Do not employ random abbreviations for concepts as a way to save words. For example, do not shorten “fact of consequence” to “FOC.”
Materials:
You may use all assigned materials from the class, including LCS, your rules pamphlet, blog posts, and any rules, statutes, cases, and other materials provided or assigned. You may use any original notes, outlines, or other study document that you were at least 25% responsible for creating (i.e., a communal outline created by a study group). You may not use commercial outlines, supplements, or other materials and books that were not assigned as part of the class.
Again, you may not discuss the problem, the questions, the answers, or anything about this exam—in any oral, written, or other form—with your classmates, me, another faculty member, your friends, your family, strangers, pets, or anyone in the known universe.
Academic Policies and Rules
This examination is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies, reprinted in the College of Law Student Handbook. Students are expected to be familiar with and to conduct themselves in accordance with those policies and regulations.
Good luck.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
EDWARD A. VANDERVENTER, JR. )
and SUSAN VANDERVENTER, )
Plaintiffs )
v. ) Case No. 23-1227
)
HYUNDAI MOTOR AMERICA and )
KAYLA M. SCHWARTZ, )
Defendants )
Complaint
1) On July 31, 2020, in Milwaukee, WI, Edward Vanderventer (“Edward”) was driving in his 2018 Hyundai Elantra; his wife, Susan Vanderventer (“Susan”), sat in the front passenger seat.
2) A vehicle driven by Kayla Schwartz (“Schwartz”) struck the Vanderventer car from behind.
3) Schwartz was negligent in her driving and caused the crash.
4) Schwartz was wholly responsible for the crash, in particular because she was using her cell phone in a distracting manner at the time of the crash.
5) Edward sustained a fracture of the T6 vertebra in his spine, resulting in paraplegia.
6) Edward sustained these injuries in a crash for which Schwartz was wholly responsible.
7) Edward suffered enhanced injuries—beyond what he would have sustained in this type of crash—because the driver’s seat failed as a result of a defective design. The seat’s “HB” design was defective, causing the seat to fail, and therefore worsening Edward’s injuries.
8) Susan suffered less severe injuries—a concussion and bruised ribs. Susan sustained these injuries in a crash for which Schwartz was wholly responsible.
Count I: Strict Products Liability-Defective Design
(Plaintiff Edward Vandervanter against Defendant Hyundai Motor America (“Hyundai”))
Count II: Negligence
(Plaintiffs Edward Vanderventer and Susan Vanderventer against Defendant Schwartz)
Legal Provisions
Beyond the rules and statutes applicable to civil litigation in federal court, the following state law applies in this case:
§ 895.423(b): Evidence that a driver was speaking, texting, typing, reading, swiping, scrolling, or otherwise using a mobile device in a distracting manner at the time of an accident involving an automobile shall establish that the driver of that automobile is negligent.
(Note: This provision took effect on January 1, 2020, as a legislative effort to address and combat distracted driving. It has caused controversy and confusion among the public).
§ 895.047(1)(a): To prove a design defect, a claimant must establish that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and that the omission of the alternative design renders the product not reasonably safe.
Murphy v. Columbus Mackinnon Corp. (Wis. 2018): § 895.047(1)(a) does not require a plaintiff to prove that defendant created a prototype of a reasonable alternative design or even that defendant considered the alternative design for commercial use. It is enough for plaintiff to show that the alternative design existed and could have been practically adopted at the time of design and manufacture, regardless of what the defendant did with that design.
Trial
A jury is selected and empaneled and the parties complete opening statements.
Case-in-Chief of Plaintiffs Edward and Susan Vanderventer
Testimony of Susan Vanderventer
Direct Examination
Q: Did you come to learn the defendant had a phone at the scene at some point?
A: Yes.
Q: How?
A: After the accident, I saw her race from her car to the side of the canal along the side of the road. She stopped at the edge of the water, looked all around, then she threw her phone into the water.
Schwartz Counsel: Objection to her characterization of the defendant’s behavior—terms such as “racing” and “looking all around” and “throwing” are not facts to which this witness can testify.
1) For plaintiffs, respond to the objection.
Court: Objection overruled. You may continue, counsel.
Q: Where were you when you saw this?
A: I was sitting in the passenger seat of the car, but I could see out the side window.
Q: How far away was she when she did that?
A: About 25 feet or so.
Q: Could you see her clearly?
A: Yes.
Q: How long after the accident did this happen?
A: Maybe five minutes, I think.
Cross Examination:
Q: Ms. Vanderventer, I show you what has been preliminarily marked as Defense Exhibit # 1. Can you identify the document’s title?
A: It says “Hospital Admission Report for Susan Vanderventer.”
Q: Is that you?
A: Yes, it is.
Q: What is the date and time of admission?
A: 3:10 p.m., Friday, July 31, 2020.
Q: How long after the accident was that?
A: About an hour.
Q: Skipping to page 3, it has a space for “Diagnosis.” What is the first thing listed?
A: Severe concussion.
Q: Your Honor, we offer as Defense Exhibit # 1 the document titled “Hospital Admission Report for Susan Vanderventer” into evidence, specifically the portions showing when the plaintiff arrived at the hospital and the diagnosis of a concussion.
Plaintiff Counsel: Objection to relevancy of that part of the report. We also object to using a document rather than the testimony of the witness on the stand.
2) For Schwartz, respond to the objection.
Testimony of Dr. Kenneth Saczalski (“Saczalski”). (Dr. Saczalski is an expert on automotive engineering, product design, and product safety).
Direct examination:
Q: What seat design was used in the 2018 Elantra?
A: The HB design.
Q: Were other seat designs available at the time this car was manufactured?
A: Yes. The AB design.
Q: Would the AB design have been more effective in protecting the driver in a rear collision than the HB?
A: Yes.
Q: Was that design known within the industry in 2018?
A: Yes. Reports of the design began circulating in 2015.
Hyundai Counsel: Objection to relevance, Your Honor.
Plaintiff Counsel: Your Honor, this goes to the reasonable alternative design we must show in a defective-design case under Wisconsin law.
Hyundai Counsel: But the witness has not testified that defendants tested or did anything with this design. Therefore, the existence of this design is not relevant because it was not part of the defendant’s commercial activities or commercial considerations. Moreover, Your Honor, there is not even evidence Hyundai or anyone at Hyundai knew about the AB design, which should be a condition for relevancy. So no matter what, the plaintiffs have not laid foundation for this evidence to be admitted at this time.
3) For plaintiffs, respond to the relevancy objection.
4) For plaintiffs, respond to the conditioning-fact objection.
Plaintiffs complete their case-in-chief.
Case-in-Chief of Defendant Kayla Schwartz
Testimony of Kayla Schwartz
Direct Examination:
Q: Did you have a cell phone with you in the car at the time of the accident?
A: Yes.
Q : Where was the phone at the time of the accident?
A: It was lying on the passenger’s seat.
Q: Were you texting on the phone?
A: No.
Q: Were you speaking to anyone over the phone?
A: No.
Q: Were you typing on any other app?
A: No.
Q: Were you reading anything on the phone?
A: No.
Q: Did you have any open apps?
A: Yes; it was playing an audiobook. I think it was the Audible app.
Q: Were you handling or looking at the phone in any way?
A: No; just listening.
Q: When did you open the audiobook app and begin playing it?
A: When I first got in the car, before I began driving.
Q: Did you touch the phone or adjust the app around the time of the accident?
A: No.
Q: Was the phone distracting you?
A: No.
Cross Examination:
Q: Do you deny that you threw the phone in the canal following the crash?
A: No; I did do that.
Q: Even though you say all you were doing with the phone was listening and you weren’t distracted—you got rid of the phone.
A: Yes.
Q: When you did that, you believed that someone could examine the phone and determine what you were doing on it at the moment of the crash, correct?
A: I don’t know anything about how these phones function.
Q: But you believed it was possible, didn’t you?
A: I thought it was possible.
Q: So you believed that throwing your phone away would make it impossible to examine the phone and figure out what you were doing at the time of the accident, isn’t that right.
A: That isn’t why I did it.
Q: But you knew—you were aware—that throwing the phone in the water would have that effect—the phone could not be examined?
A: Yes.
Schwartz Counsel: Objection. I would like to hear counsel explain the relevancy of this entire line of questioning.
Plaintiff Counsel: Your Honor, this goes to the witness’ credibility. It also shows that the defendant was, in fact, using the phone in a distracting manner while driving at the time of the crash, thereby showing liability under § .423(b).
5) For the court, decide whether the evidence is relevant to the witness’ credibility.
6) For plaintiffs, explain the relevancy to whether defendant was distracted by her phone while driving.
Case-in-Chief of Defendant Hyundai
Testmony of Dr. Shekar Kurpad. (Dr. Kurpal is an engineer and the head of product design and testing for Hyundai; he led the design, testing, and creation of the HB design seat installed on the 2018 Elantra).
Direct Examination:
Q: In creating the HB design, what did you use as the guidepost?
A: We considered what was going on in the industry for seat design.
Q: And what did that lead you to conclude?
A: The HB design was, in 2018, the state of the art.
Q: What does that mean—“state of the art?”
A: That means the HB design components and characteristics used the best practices in the industry to protect occupants – in this case against rear impacts.
Q: What did you understand yourselves to be doing with this design?
A: We tried to make the best seat we could, the safest seat we could. And we believed we had done so. This was the most optimized concept of them all, the best in the automotive industry.
Q: How would you describe the HB design as a seat?
A: We concluded it was abundantly safe, including against rear collisions.
Cross Examination:
Q: You testified on direct that, at the time you were designing the seats for the 2018 Elantra, the HB design was the state of the art and reflected best industry practices, correct?
A: Yes.
Q: You said it was the “most optimized concept,” correct?
A: Yes.
Q: So Hyundai’s position in 2018 was that it could not have made a safer seat than the HB?
A: Not on the then-current state of technology and design.
Q: Were you aware of the AB design at that time, prior to 2018?
A: We were aware of it, although we never really considered using it and did not do anything with it.
Q: But you knew of its existence prior to 2018?
A: We did.
Q: And you knew it was available for use on Hyunadai cars prior to 2018?
A: We did.
Q: In 2021, Hyundai changed the design of the seats used in the Elentra, correct?
A: Yes.
Q: And Hyundai adopted the AB design, correct? The AB design is on all 2021 and newer Elantra’s?
Hyundai Counsel: Objection under Rule 407, Your Honor.
7) For the court, rule on the objection.
End of exam. Congratulations.
