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Civil Procedure

Exam 15
30 minutes

Fact Pattern

The plaintiff is driving a car on a highway in State X. Without warning, the plaintiff’s car collides with a truck; as a result, the plaintiff suffers personal injuries. A corporation, a citizen of State Y, owns and operates the truck.

The plaintiff sues the corporation for negligence, filing the complaint in a State X court of general jurisdiction. The plaintiff’s claim arises under the law of State X, and State X is one of the few states that still follows the rule of contributory negligence in tort cases. State X's rules regarding pretrial discovery do not require any preliminary disclosures of either evidence or witnesses.

The plaintiff properly serves the corporation with process. Immediately, the corporation removes the case to the appropriate division of the U.S. District Court for the District of State X. (Assume that this case falls within federal diversity jurisdiction, that the court has personal jurisdiction, and that removal is proper in all respects.) After removal, the corporation files a timely answer, raising the affirmative defense of contributory negligence under State X’s law.

Five days after the corporation files its answer, the parties hold a discovery conference under Fed. R. Civ. P. (Rule) 26(f). Ten days later, the corporation makes its initial disclosures of evidence and witnesses under Rule 26(a). The plaintiff does not make any initial disclosures.

The corporation then moves to transfer the case to the U.S. District Court for the District of State Y. The State X district court grants the motion. (Assume that this transfer is proper in all respects.) State Y’s law does not recognize contributory negligence, but instead follows the rule of comparative negligence. The corporation does not amend its answer after the case is transferred.

After discovery is complete, the judge now presiding over the case holds a pretrial conference, at which the parties are to present requested jury instructions. The corporation asks for a jury instruction on contributory negligence, but the plaintiff objects and asks for a jury instruction on comparative negligence. The judge decides to instruct the jury on contributory negligence, per the corporation’s request.

At trial, the truck driver testifies that he was safely operating the truck, and that the collision occurred when the plaintiff crossed the center line of the highway. In response, the plaintiff calls a witness, W, who is the doctor who treated the driver immediately after the accident. W is prepared to testify that, in the collision, the driver suffered a head injury, which likely obscures his memory of what happened. Assume that, if W were allowed to testify, this testimony would be admissible to impeach the driver, because it calls into question the driver’s mental capacity to remember the facts.

The corporation objects to admitting W’s testimony, because the plaintiff never disclosed W as a witness before trial. The corporation argues that the plaintiff should have disclosed W through the Rule 26(a) initial disclosures, which the plaintiff never made. The corporation alleges no other discovery violations by the plaintiff.

The plaintiff admits knowing of W’s potential testimony before filing the complaint. However, the plaintiff argues that initial disclosures were not required after the case’s removal to federal court, because initial disclosures were not required in the state courts of State X, where the plaintiff filed the case.


  1. Did the judge rule correctly in deciding to instruct the jury on contributory negligence? Explain.
  2. Should the judge allow W to testify? Explain.

Question 1

Did the judge rule correctly in deciding to instruct the jury on contributory negligence? Explain.

Question 2

Should the judge allow W to testify? Explain.

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